Yancey v. Conway

46 A.D.3d 1042, 847 N.Y.S.2d 282

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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

A search of petitioner’s prison cell resulted in the discovery of an ice-pick type weapon and a quantity of marihuana. Consequently, petitioner was charged in a misbehavior report with possession of a weapon and possession of drugs. Following a tier III disciplinary hearing, petitioner was found guilty of both charges. Upon administrative review, that determination was affirmed with a modified penalty. Petitioner then commenced this CPLR article 78 proceeding.

We confirm. The determination of guilt is supported by substantial evidence including the detailed misbehavior report and extensive hearing testimony (see Matter of Johnson v Goord, 27 AD3d 859, 860 [2006]). Petitioner’s allegation that the contraband had been “planted” in his cell by a correction officer created a credibility issue for the Hearing Officer to resolve (see Matter of Nijman v Goord, 294 AD2d 737, 737 [2002]). As for petitioner’s assertion that the Hearing Officer was biased, it is neither substantiated by the record nor is there any indication that the determination flowed from any alleged bias (see Matter of McKinley v Goord, 40 AD3d 1280, 1280 [2007], lv denied 9 NY3d 807 [2007]). We have considered petitioner’s remaining contentions, including his claims that his cell was improperly searched, the misbehavior report was deficient and the chain of custody relative to the marihuana was not appropriately established, and find them to be unavailing.

. Mercure, J.P., Peters, Carpinello, Mugglin and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.