Opinion
2012-05-24
In the Matter of John H. WHITE, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
John H. White, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marlene O. Tuczinski of counsel), for respondent.
John H. White, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marlene O. Tuczinski of counsel), for respondent.
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 which found petitioner guilty of violating certain prison disciplinary rules.
*925 As a result of his failure to provide a urine sample for testing, petitioner was charged in a misbehavior report with refusing a direct order and violating urinalysis testing procedures. He was found guilty of the charges at the conclusion of a tier III disciplinary hearing, and the determination was affirmed upon administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with the hearing testimony, provide substantial evidence supporting the determination of guilt ( see Matter of Sital v. Fischer, 72 A.D.3d 1306, 1307, 904 N.Y.S.2d 228 [2010], lv. dismissed 15 N.Y.3d 823, 908 N.Y.S.2d 156, 934 N.E.2d 890 [2010]; Matter of Credle v. Selsky, 46 A.D.3d 989, 990, 846 N.Y.S.2d 797 [2007] ). Petitioner's claim that the misbehavior report was filed in retaliation for a grievance presented a credibility issue for the Hearing Officer to resolve ( see Matter of Sital v. Fischer, 72 A.D.3d at 1307, 904 N.Y.S.2d 228; Matter of Becker v. Goord, 13 A.D.3d 947, 948, 787 N.Y.S.2d 441 [2004] ). While petitioner maintains that the Hearing Officer did not give proper credit to his defense, this is not indicative of bias, and there is nothing in the record to suggest that the determination flowed from any alleged bias on the part of the Hearing Officer ( see Matter of Marino v. New York State Dept. of Correctional Servs., 41 A.D.3d 1004, 1005, 838 N.Y.S.2d 689 [2007], appeal dismissed, lv. denied 9 N.Y.3d 940, 844 N.Y.S.2d 781, 876 N.E.2d 509 [2007]; Matter of Hoover v. Goord, 38 A.D.3d 1069, 1070, 831 N.Y.S.2d 602 [2007], lv. denied 8 N.Y.3d 816, 839 N.Y.S.2d 455, 870 N.E.2d 696 [2007] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.