Harris v. Selsky

Appellate Division of the Supreme Court of the State of New York

Feb 3, 2005

Versions:15 A.D.3d 708

788 N.Y.S.2d 714

2005 N.Y. App. Div. LEXIS 923

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

Pursuant to two misbehavior reports, petitioner was found guilty of possessing drug paraphernalia, smuggling and refusing a direct order.¹ The first misbehavior report related that petitioner was on drug watch and a search of his feces uncovered a portion of a pink balloon. According to the second misbehavior report, petitioner disobeyed a direct order to keep his hands exposed in compliance with drug watch procedures. Initially, we are unpersuaded by petitioner‘s challenge to the adequacy of the hearing transcript and find that the hearing transcript was sufficient for meaningful judicial review (see Matter of Schuler v McCray, 8 AD3d 777, 778-779 [2004]; Matter of Connelly v Selsky, 7 AD3d 904 [2004]). Turning to the merits, we find that the misbehavior reports, testimony from the correction officer who wrote the first misbehavior report and inferences to be drawn therefrom provide substantial evidence to support the determination of guilt (see Matter of Morgan v Goord, 10 AD3d 792 [2004]). We also reject petitioner‘s contention that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Edwards v Goord, 11 AD3d 832 [2004]). Petitioner‘s remaining contentions, having not been raised in a timely manner, are unpreserved for our review (see Matter of Black v Goord, 12 AD3d 1005 [2004]; Matter of Lunney v Goord, 290 AD2d 687, 688 [2002]).

Crew III, J.P., Peters, Carpinello, Mugglin and Rose, JJ., concur.

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

Notes

* The second misbehavior report also charged petitioner with making a threat; however, he was found not guilty of this charge at the conclusion of the tier III disciplinary hearing.