Pabon v. Phillips

Appellate Division of the Supreme Court of New York

Pabon v. Phillips

16 A.D.3d 589, 790 N.Y.S.2d 879, 2005 N.Y. App. Div. LEXIS 3046

Appellate Division of the Supreme Court of the State of New York·Decided March 21, 2005·Published·Cited by 6 cases

Opinion

— Proceeding pursuant to CPLR article 78 to review a determination of the respondent, William E. Phillips, Superintendent of Green Haven Correctional Facility, dated September 14, 2003, which affirmed a determination of a hearing officer, made after a Tier II disciplinary hearing, finding the petitioner guilty of violating prison disciplinary rules, and imposing a penalty.

[590] Adjudged that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, without costs or disbursements.

This proceeding was improperly transferred to this Court by the Supreme Court, Dutchess County, pursuant to CPLR 7804 (g) (see Thurman v Holahan, 123 AD2d 687 [1986]). However, we will retain jurisdiction and decide this case on the merits (see Matter of Giano v Coughlin, 162 AD2d 986 [1990]; Matter of Portugal v Webb, 91 AD2d 997, 998 [1983]).

Contrary to the petitioner’s contention, there is no evidence in the record that the hearing officer who made the disciplinary determination was biased against him (see Matter of Johnson v Selsky, 14 AD3d 755 [2005]; Matter of Martinez v Scully, 194 AD2d 679 [1993]).

The petitioner’s remaining contentions were not raised upon the administrative appeal and therefore are unpreserved for judicial review. H. Miller, J.P., Ritter, Mastro and Lifson, JJ., concur.

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— Proceeding pursuant to CPLR article 78 to review a determination of the respondent, William E. Phillips, Superintendent of Green Haven Correctional Facility, dated September 14, 2003, which affirmed a determination of a hearing officer, made after a Tier II disciplinary hearing, finding the petitioner guilty of violating prison disciplinary rules, and imposing a penalty.

[590] Adjudged that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, without costs or disbursements.

This proceeding was improperly transferred to this Court by the Supreme Court, Dutchess County, pursuant to CPLR 7804 (g) (see Thurman v Holahan, 123 AD2d 687 [1986]). However, we will retain jurisdiction and decide this case on the merits (see Matter of Giano v Coughlin, 162 AD2d 986 [1990]; Matter of Portugal v Webb, 91 AD2d 997, 998 [1983]).

Contrary to the petitioner’s contention, there is no evidence in the record that the hearing officer who made the disciplinary determination was biased against him (see Matter of Johnson v Selsky, 14 AD3d 755 [2005]; Matter of Martinez v Scully, 194 AD2d 679 [1993]).

The petitioner’s remaining contentions were not raised upon the administrative appeal and therefore are unpreserved for judicial review. H. Miller, J.P., Ritter, Mastro and Lifson, JJ., concur.

Pabon v. Phillips, 16 A.D.3d 589, 790 N.Y.S.2d 879, 2005 N.Y. App. Div. LEXIS 3046 (N.Y. Ct. App. 2005).

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