Matter of Phillips v Lee

Matter of Phillips v Lee 2014 NY Slip Op 02051 Decided on March 26, 2014 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 26, 2014
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, J.P.
CHERYL E. CHAMBERS
LEONARD B. AUSTIN
ROBERT J. MILLER, JJ.
2013-02500
(Index No. 7224/12)

[*1]In the Matter of Gerald Phillips, petitioner,

v

William Lee, etc., respondent.




Gerald Phillips, Stormville, N.Y., petitioner pro se.
Eric T. Schneiderman, Attorney General, New York, N.Y.
(Michael S. Belohlavek and David
Lawrence III of counsel), for
respondent.


DECISION & JUDGMENT

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; Matter of Harris v Kaplin, 102 AD3d 692, 692-693; Matter of Mills v Fischer, 85 AD3d 1033; Matter of Haynes v Bezio, 73 AD3d 1295, 1296; Matter of Reyes v Leclaire, 49 AD3d 884, 884-885). 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; Matter of Applegate v Heath, 88 AD3d 699, 700; Matter of Costantino v Goord, 38 AD3d 657, 658; Matter of Goncalves v Donnelly, 9 AD3d 721).

The petitioner failed to demonstrate that the hearing officer 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; Matter of Reyes v Leclaire, 49 AD3d at 885; Matter of Fernandez v Goord, 27 AD3d 806, 807; 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).
MASTRO, J.P., CHAMBERS, AUSTIN and MILLER, JJ., concur.

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court