Phillips v. Lee — 115 A.D.3d 957

Majority

p. 957

In the Matter of Gerald Phillips, Petitioner, v William Lee, Superintendent, Green Haven Correctional Facility, Respondent.

[982 NYS2d 536]

Proceeding pursuant to CPLR article 78 to review a determination of the Superintendent of the Green Haven Correctional Facility, dated October 12, 2012, which affirmed the findings of a hearing officer dated October 5, 2012, made after a tier II disciplinary hearing, finding the petitioner guilty of violating certain prison disciplinary rules, and imposing penalties.

Adjudged that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, without costs or disbursements.

Contrary to the petitioner’s contention, the hearing officer’s determination that he was guilty of violating prison disciplinary rules was supported by substantial evidence in the record (see Matter of Foster v Coughlin, 76 NY2d 964 , 966 [1990]; Matter of Harris v Kaplin, 102 AD3d 692 , 692-693 [2013]; Matter of Mills v Fischer, 85 AD3d 1033 [2011]; Matter of Haynes v Bezio, 73 AD3d 1295 , 1296 [2010]; Matter of Reyes v Leclaire, 49 AD3d 884 , 884-885 [2008]). Inconsistencies in the hearing testimony presented credibility issues that were resolved by the hearing officer, and we discern no basis in the record for disturbing his determination (see Matter of Ojeda v Venettozzi, 99 AD3d 914 [2012]; Matter of Applegate v Heath, 88 AD3d 699 , 700 [2011]; Matter of Costantino v Goord, 38 AD3d 657 , 658 [2007]; Matter of Goncalves v Donnelly, 9 AD3d 721 [2004]).

The petitioner failed to demonstrate that the hearing officer

p. 958

was biased against him. The record demonstrates that the hearing was conducted in a fair and impartial manner and that the determination was not the result of any alleged bias on the part of the hearing officer (see Matter of Harris v Kaplin, 102 AD3d at 693 ; Matter of Carlisle v Lee, 96 AD3d 837 [2012]; Matter of Reyes v Leclaire, 49 AD3d at 885 ; Matter of Fernandez v Goord, 27 AD3d 806 , 807 [2006]; Matter of Goncalves v Donnelly, 9 AD3d at 722 ). Notwithstanding the petitioner’s assertion to the contrary, “[t]he mere fact that the hearing officer ruled against the petitioner is insufficient to establish bias” (Matter of Martinez v Scully, 194 AD2d 679 , 680 [1993]).

Mastro, J.E, Chambers, Austin and Miller, JJ., concur.

Cases cited

Foster v. Coughlin 76 NY2d 964 N.Y. 1990-11-27 at 966 p. 957
Harris v. Kaplin 102 AD3d 692 N.Y. App. Div. 2013-01-09 at 692-693 p. 957
Mills v. Fischer 85 AD3d 1033 N.Y. App. Div. 2011-06-21 p. 957
Haynes v. Bezio 73 AD3d 1295 N.Y. App. Div. 2010-05-13 at 1296 p. 957
Reyes v. Leclaire 49 AD3d 884 N.Y. App. Div. 2008-03-25 at 884-885 p. 957
Ojeda v. Venettozzi 99 AD3d 914 N.Y. App. Div. 2012-10-17 p. 957
Applegate v. Heath 88 AD3d 699 N.Y. App. Div. 2011-10-04 at 700 p. 957
Goncalves v. Donnelly 9 AD3d 721 N.Y. App. Div. 2004-07-15 p. 957
Carlisle v. Lee 96 AD3d 837 N.Y. App. Div. 2012-06-13 p. 958
Fernandez v. Goord 27 AD3d 806 N.Y. App. Div. 2006-03-02 at 807 p. 958
Martinez v. Scully 194 AD2d 679 N.Y. App. Div. 1993-06-14 at 680 p. 958