McClean v. Coombe

Sep 17, 1997
Versions:242 A.D.2d 846
664 N.Y.S.2d 273
Yesawich Jr., J.

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

While an inmate at Franklin Correctional Facility in Franklin County, petitioner was served with a misbehavior report charging him with violating several prison disciplinary rules. Following a disciplinary hearing, he was found guilty of assaulting another inmate, fighting and possessing a weapon. Petitioner commenced this CPLR article 78 proceeding challenging the determination.

*847Initially, petitioner contends that he was deprived of due process by the Hearing Officer’s failure to provide him with a written summary of the testimony of the confidential informant who implicated him in the assault. Inasmuch as petitioner did not ask for such a summary at the hearing, this claim is not preserved for our review (see, Matter of Melendez v Coombe, 233 AD2d 630; Matter of Taylor v Coombe, 228 AD2d 851).

Nor is there merit to petitioner’s claim that the Hearing Officer was biased. The hearing was conducted in a fair and impartial manner; the Hearing Officer’s remarks which petitioner finds objectionable are not, in our view, indicative of a prejudgment of guilt (see, Matter of Odom v Goord, 238 AD2d 816; Matter of Robles v Coombe, 234 AD2d 847). Lastly, the misbehavior report, the testimony of the correction officer who prepared it and the victim, and the information provided by the confidential informant, taken together, provide substantial evidence supporting the administrative determination of guilt (see, Matter of Rodriguez v Coombe, 236 AD2d 899; Matter of Garrett v Selsky, 228 AD2d 758, 759).

Mikoll, J. P., Crew III, White and Spain, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.