Matter of Johnson v. Annucci

Appellate Division of the Supreme Court of New York

Matter of Johnson v. Annucci

141 A.D.3d 996, 34 N.Y.S.3d 918

Appellate Division of the Supreme Court of the State of New York·Decided July 21, 2016·No. 522143·Published·Cited by 6 cases

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 finding petitioner guilty of violating a prison disciplinary rule.

*997 Petitioner was charged in a misbehavior report with using a controlled substance after a sample of his urine twice tested positive for the presence of buprenorphine. He was found guilty of the charge following a tier III disciplinary hearing, and the determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued. *

We confirm. Upon reviewing the record, we find no merit to petitioner’s claim that he was denied a fair hearing. Significantly, there is no indication that the Hearing Officer engaged in conduct suggestive of bias or that the determination flowed from any alleged bias (see Matter of Williams v Prack, 130 AD3d 1123, 1124 [2015]; Matter of Paddyfote v Fischer, 118 AD3d 1240, 1241 [2014]). Furthermore, petitioner’s challenge to the tier II designation assigned to the matter has not been preserved for our review due to his failure to raise it at the hearing (see Matter of Joseph v Prack, 133 AD3d 1014, 1015 [2015]; Matter of Baez v Bellnier, 131 AD3d 771 [2015]).

Lahtinen, J.P., Garry, Rose, Lynch and Mulvey, JJ., concur.

Adjudged that the determination is confirmed, without costs, and petition dismissed.

*

Although the proceeding was improperly transferred to this Court as the verified petition does not raise the issue of substantial evidence, we nevertheless retain jurisdiction in the interest of judicial economy (see Matter of Toliver v New York State Dept. of Corr. & Community Supervision, 127 AD3d 1536, 1537 n [2015]).

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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 finding petitioner guilty of violating a prison disciplinary rule.

*997 Petitioner was charged in a misbehavior report with using a controlled substance after a sample of his urine twice tested positive for the presence of buprenorphine. He was found guilty of the charge following a tier III disciplinary hearing, and the determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued. *

We confirm. Upon reviewing the record, we find no merit to petitioner’s claim that he was denied a fair hearing. Significantly, there is no indication that the Hearing Officer engaged in conduct suggestive of bias or that the determination flowed from any alleged bias (see Matter of Williams v Prack, 130 AD3d 1123, 1124 [2015]; Matter of Paddyfote v Fischer, 118 AD3d 1240, 1241 [2014]). Furthermore, petitioner’s challenge to the tier II designation assigned to the matter has not been preserved for our review due to his failure to raise it at the hearing (see Matter of Joseph v Prack, 133 AD3d 1014, 1015 [2015]; Matter of Baez v Bellnier, 131 AD3d 771 [2015]).

Lahtinen, J.P., Garry, Rose, Lynch and Mulvey, JJ., concur.

Adjudged that the determination is confirmed, without costs, and petition dismissed.

*

Although the proceeding was improperly transferred to this Court as the verified petition does not raise the issue of substantial evidence, we nevertheless retain jurisdiction in the interest of judicial economy (see Matter of Toliver v New York State Dept. of Corr. & Community Supervision, 127 AD3d 1536, 1537 n [2015]).

Matter of Johnson v. Annucci, 141 A.D.3d 996, 34 N.Y.S.3d 918 (N.Y. Ct. App. 2016).

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Opinion

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