Polite v. Goord

248 A.D.2d 1017, 670 N.Y.S.2d 142, 1998 N.Y. App. Div. LEXIS 3121

Opinion

—Determination unanimously confirmed without costs and petition dismissed. Memorandum: The determination that petitioner violated inmate rules 113.10 (7 NYCRR 270.2 [B] [14] [i]) and 113.11 (7 NYCRR 270.2 [B] [14] [ii]) is supported by the misbehavior report, which states that, during a search of petitioner’s cell, the correction officer who wrote the misbehavior report found a metal crossbar wedged inside a desk. That evidence is sufficient to give rise to a reasonable inference that petitioner knowingly possessed a weapon (see, Matter of Hawkins v Coombe, 225 AD2d 1095, 1096; Matter of Torres v Coughlin, 213 AD2d 861). The testimony of petitioner that he did not know that the crossbar was there presented an issue of credibility for the Hearing Officer to resolve (see, Matter of Hay v Coombe, 229 AD2d 1015, Iv denied 88 NY2d 816).

Finally, the record establishes that the Hearing Officer conducted the hearing in a fair and impartial manner, and there is no evidence that he was biased or that the outcome of the hearing flowed from any bias (see, Matter of Parker v Coughlin, 211 AD2d 929; Matter of Martinez v Scully, 194 AD2d 679). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.)

Present — Pine, J. P., Hayes, Callahan, Balio and Boehm, JJ.