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McKenzie v. Coombe

236 A.D.2d 652 Court N.Y. App. Div. Decision date 1997-02-06 English

Delivered by Casey, J.

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p. 652
In the Matter of Leonard McKenzie, Petitioner, v Philip Coombe, Jr., as Commissioner of the Department of Correctional Services, Respondent.
[654 NYS2d 43]

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.

Petitioner, a prison inmate, was charged with violating various prison disciplinary rules when a balloon containing heroin was found in his boot during a strip frisk. Following a disciplinary hearing, petitioner was found guilty of possessing a controlled substance and smuggling.[1] He commenced this CPLR article 78 proceeding challenging the determination, which was transferred to this Court for review.

Petitioner argues, inter alia, that he was not provided with adequate employee assistance and that the Hearing Officer was biased. Initially, it is evident from our review of the hearing transcript that petitioner waived employee assistance at the time he was served with the misbehavior reports (see, Mat

* He pleaded guilty to the charge of unauthorized exchange of items with another inmate.

p. 653
ter of Wong v Coughlin, 138 AD2d 899 , 901; see also, Matter of Mabry v Coughlin, 191 AD2d 892 , 893). He explained at the hearing that he waived assistance because he had just been transferred to the correctional facility and did not know anyone. In view of this, petitioner may not now claim that he was denied adequate employee assistance. Moreover, we do not find, under the circumstances presented, that the Hearing Officer erred in denying petitioner’s request for assistance made later in the hearing. Likewise, we find that the Hearing Officer conducted the hearing in a fair and impartial manner and, therefore, reject petitioner’s claim of bias (see, Matter of Caban v Coombe, 233 AD2d 654 ; Matter of Kron v Coombe, 233 AD2d 641 ). We have considered petitioner’s remaining contentions and find that they are either unpreserved for our review or lacking in merit.

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

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