Matter of Anthony Steward v Glenn S. Goord

Matter of Steward v Goord 2005 NY Slip Op 09792 [24 AD3d 1075] December 22, 2005 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 15, 2006

In the Matter of Anthony Steward, Petitioner, v Glenn S. Goord, as Commissioner of Correctional Services, et al., Respondents.

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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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with smuggling, violating facility visiting procedures and possessing drugs. The charges were filed after a female visitor came to the prison and voluntarily surrendered a balloon containing marihuana which she indicated petitioner had asked her to bring to the facility. He was found guilty of all charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of the correction officer who prepared it, provide substantial evidence supporting the determination of guilt (see Matter of Gee v Goord, 21 AD3d 636, 637 [2005]; Matter of Alvarez v Goord, 17 AD3d 945, 946 [2005]). The visitor's testimony that petitioner was unaware of her marihuana possession, which was inconsistent with her prior statement, presented a credibility issue for the Hearing Officer to resolve (see e.g. Matter of Dover v Goord, 287 AD2d 815, 816 [2001]). In addition, [*2]upon reviewing the hearing transcript, we do not find that the Hearing Officer was biased or that the determination at issue flowed from any alleged bias (see Matter of Quezada v Goord, 19 AD3d 964, 965 [2005]; Matter of Boyd v Goord, 18 AD3d 1078, 1079 [2005]). Petitioner's remaining contentions are unpreserved for our review having not been raised at the disciplinary hearing (see Matter of Boyd v Goord, supra at 1079).

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