Dexter v. McGinnis

Mar 10, 2005
Versions:16 A.D.3d 793
790 N.Y.S.2d 414
2005 N.Y. App. Div. LEXIS 2396

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

Petitioner was charged in a misbehavior report with the unauthorized exchange of property after a correction officer discovered that a $25 money order had been sent to petitioner by another inmate‘s relative in payment for items such as soap and other things. He was found guilty of the charge following a tier II disciplinary hearing and the determination was affirmed on administrative appeal. Petitioner then commenced this CPLR article 78 proceeding challenging it.

We confirm. The misbehavior report, together with the testimony of the correction officer who prepared it as well as that of the recipient of the items, the money order and the letter accompanying it, provide substantial evidence supporting the determination of guilt (see Matter of Brown v Goord, 1 AD3d 684, 685 [2003]; Matter of Miller v Portuondo, 269 AD2d 646, 646 [2000]). Contrary to petitioner‘s claim, the record reveals that the Hearing Officer conducted the hearing in a fair and impartial manner and the determination did not flow from any alleged bias on the part of the Hearing Officer (see Matter of Nimmons v Goord, 7 AD3d 887, 889 [2004]; Matter of Porter v Goord, 6 AD3d 1013, 1014 [2004], lv denied 3 NY3d 602 [2004]). Petitioner‘s remaining claims, to the extent they have been preserved for our review, are unavailing.

Peters, J.P., Mugglin, Rose, Lahtinen and Kane, JJ., concur.

Adjudged that the determination is confirmed, without costs, and petition dismissed.