Morgan v. Goord

10 A.D.3d 792, 781 N.Y.S.2d 812, 2004 N.Y. App. Div. LEXIS 10956

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 23, 2004
• Status: Published

Opinion

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

Petitioner commenced this CPLR article 78 proceeding challenging a determination finding him guilty of violating the prison disciplinary rules that prohibit smuggling and providing false information. According to the misbehavior report, a small balloon fragment fell from petitioner’s buttocks during a strip search. Petitioner then denied that it came from him. The misbehavior report, testimony at the hearing and the inferences to be drawn therefrom provide substantial evidence to support the determination of guilt (see Matter of Foster v Coughlin, 76 NY2d 964, 966 [1990]; Matter of Price v Goord, 301 AD2d 986 [2003]; Matter of Cole v Selsky, 269 AD2d 717 [2000]).

We reject petitioner’s assertion that he was denied due process because the balloon fragment was not produced at the hearing. Inasmuch as it was not destroyed in bad faith but, rather, as a result of reasonable procedures used to test for controlled substances, he was not improperly denied access to the evidence (see Matter of Harris v Selsky, 236 AD2d 723, 724 [1997]). Petitioner’s request for production of an unusual incident report was properly denied as there was no indication that any such report existed (see Matter of Dawes v McClellan, 223 AD2d 890 [1996] ).

We are also unpersuaded by petitioner’s contention of hearing officer bias. Even in light of the Hearing Officer’s remarks and other conduct challenged by petitioner, our review of the hearing transcript fails to establish that the outcome of the hearing flowed from any alleged bias (see Matter of McClean v Coombe, 242 AD2d 846 [1997]; Matter of Taylor v Selsky, 242 AD2d 772 [1997] ). Petitioner’s remaining contentions have been reviewed and found to be without merit.

Cardona, P.J., Crew III, Carpinello, Mugglin and Rose, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.