Martinez v. Goord

48 A.D.3d 851, 850 N.Y.S.2d 708

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 2008
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, an inmate, was charged in a misbehavior report with violating the prison disciplinary rule prohibiting illicit drug use. Following the ensuing tier III disciplinary hearing, petitioner was found guilty as charged and ultimately given a penalty of two months and 24 days in the special housing unit, five months and 24 days loss of privileges and six months recommended loss of good time. This CPLR article 78 proceeding ensued.

We confirm. Initially, we note that the determination of guilt is supported by the requisite substantial evidence in the form of the misbehavior report, together with the positive urinalysis test results and related documentation (see Matter of Daniels v Goord, 38 AD3d 1073, 1073 [2007]). Turning to petitioner’s claim that the Hearing Officer was biased, there is no indication in the record that the determination flowed from any purported bias (see Matter of Reid v Goord, 34 AD3d 954, 955 [2006]). As for petitioner’s challenge to the severity of the penalty imposed, we cannot conclude upon review of the record that it was so shocking to one’s sense of fairness as to be excessive (see Matter of Long v Goord, 32 AD3d 1121, 1122 [2006]). Petitioner’s remaining contentions are not properly before us.

Cardona, PJ., Mercure, Carpinello, Lahtinen and Kavanagh, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.