Matter of Hector Lopez v Michael McGinnis

Matter of Lopez v McGinnis 2005 NY Slip Op 06251 [21 AD3d 606] August 4, 2005 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, October 12, 2005

In the Matter of Hector Lopez, Petitioner, v Michael McGinnis, as Superintendent of Southport Correctional Facility, Respondent.

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Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner challenges a tier II disciplinary determination finding him guilty of violating the prison disciplinary rule prohibiting the damage, misuse or destruction of state property after a stain was discovered on petitioner's mattress during a random cell search. Inasmuch as the misbehavior report and the testimony of the correction officer who issued it provide substantial evidence of petitioner's guilt (see Matter of Mathieu v Giambruno, 9 AD3d 632, 633 [2004], lv denied 3 NY3d 609 [2004]; Matter of Cooper v Selsky, 7 AD3d 902, 903 [2004]), we confirm. Petitioner's contention that his right to submit documentary evidence at the disciplinary hearing was violated is unpersuasive since the record reveals that the documents he requested do not exist (see Matter of Spirles v Goord, 308 AD2d 610, 611 [2003]; Matter of Mena v Goord, 275 AD2d 828, 828 [2000]). Finally, nothing in the record supports petitioner's remaining contentions, including that the Hearing Officer was biased (see Matter of Scott v Goord, 268 AD2d 631, 632 [2000]).

Mercure, J.P., Spain, Carpinello, Mugglin and Kane, JJ., concur. [*2]Adjudged that the determination is confirmed, without costs, and petition dismissed.