Matter of Garcia v Smith

Matter of Garcia v Smith 2010 NY Slip Op 08044 [78 AD3d 1362] November 10, 2010 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2011

In the Matter of Edwin Garcia, Petitioner, v Joseph T. Smith, as Superintendent of Shawangunk Correctional Facility, et al., Respondents.

—[*1] Edwin Garcia, Wallkill, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Robert M. Goldfarb of counsel), for respondents.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of respondent Superintendent of Shawangunk Correctional Facility which found petitioner guilty of violating a prison disciplinary rule.

After petitioner, a prison inmate, surrendered a package of crackers containing poppy seeds, he was served with a misbehavior report charging him with possession of contraband. Petitioner was found guilty following a tier II disciplinary hearing, and that determination was upheld on administrative appeal with a reduction in the penalty assessed. He thereafter commenced this CPLR article 78 proceeding.

We confirm. Petitioner's only contention is that the Hearing Officer was biased and predisposed to a finding of guilt.[FN*] However, inasmuch as petitioner admitted at the hearing that [*2]he possessed the crackers with poppy seeds in clear violation of 7 NYCRR 270.2 (B) (14) (xix), the record shows that the finding of guilt flowed from the evidence presented, rather than any alleged hearing officer bias (see Matter of Covington v Smith, 75 AD3d 708, 708 [2010]; Matter of Hayes v Fischer, 70 AD3d 1085, 1086 [2010]).

Mercure, J.P., Rose, Malone Jr., McCarthy and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed. Footnotes

Footnote *: Supreme Court properly transferred the proceeding inasmuch as petitioner raised the issue of substantial evidence in his petition, but that issue has been abandoned because petitioner failed to raise it in his brief (see Matter of Austin v Fischer, 70 AD3d 1074, 1074 n [2010]; Matter of Polite v Goord, 49 AD3d 944, 944 n [2008]).