Goodman v. Smith — 85 A.D.3d 1474

Majority

p. 1474

In the Matter of Kenneth Goodman, Petitioner, v Joseph T. Smith, as Superintendent of Shawangunk Correctional Facility, Respondent.

[925 NYS2d 904]

Proceeding pursuant to CPLR

p. 1475

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.

After a correction officer observed petitioner and another inmate squared off in a fighting stance, petitioner was charged in a misbehavior report with threatening violence and disorderly conduct. Following a tier II disciplinary hearing, he was found guilty of both charges and that determination was administratively affirmed. Thereafter, petitioner commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report and hearing testimony of both petitioner and the correction officer who witnessed the incident and authored the report provide substantial evidence to support the finding of guilt with regard to the charged conduct (see Matter of Gentle v Bezio, 78 AD3d 1398 , 1399 [2010]). Finally, we disagree with petitioner that the Hearing Officer exhibited bias, and instead find that the determination flowed from the evidence presented at the hearing (see Matter of Ellison v Fischer, 79 AD3d 1538 , 1539 [2010]; Matter of Barclay v Knowles, 79 AD3d 1550 , 1551 [2010]).

The remainder of petitioner’s contentions have been reviewed and found to be either unpreserved or without merit.

Mercure, J.P., Rose, Lahtinen, Stein and McCarthy, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Cases cited

Gentle v. Bezio 78 AD3d 1398 N.Y. App. Div. 2010-11-18 at 1399 p. 1475
Ellison v. Fischer 79 AD3d 1538 N.Y. App. Div. 2010-12-30 at 1539 p. 1475
Barclay v. Knowles 79 AD3d 1550 N.Y. App. Div. 2010-12-30 at 1551 p. 1475