Tinker v. Bezio

106 A.D.3d 1356, 965 N.Y.S.2d 396

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 23, 2013
• 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 the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was frisked and his cell was searched for a state-issued razor, but none was found. As a result, he was charged in a misbehavior report with loss of state property and making a false statement. Following a tier III disciplinary hearing, he was found guilty of loss of state property and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. Substantial evidence, consisting of the misbehavior report and related documentation, together with petitioner’s own testimony in which he admitted to mistakenly throwing the razor in a garbage can, supports the determination of guilt (see Matter of Fuentes v Fischer, 89 AD3d 1339, 1339 [2011]; Matter of O’Sullivan v Fischer, 87 AD3d 1229, 1229 [2011]). Contrary to petitioner’s claim, the misbehavior report was sufficiently detailed to apprise him of the charges and enable him to prepare an adequate defense (see Matter of Kimbrough v Fischer, 96 AD3d 1256, 1257 [2012]; Matter of Ortiz v Fischer, 91 AD3d 1006, 1007 [2012]). Nothing in the record indicates that the Hearing Officer was biased, or that the determination flowed from any alleged bias (see Matter of Cicio v Fischer, 100 AD3d 1226, 1227 [2012]; Matter of Scott v Fischer, 92 AD3d 1000, 1001 [2012]). We have considered petitioner’s remaining contentions and find them to be unavailing.

Peters, EJ., Spain, McCarthy and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.