Matter of Zaire v Artus

Matter of Zaire v Artus 2008 NY Slip Op 01892 [49 AD3d 945] March 6, 2008 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 14, 2008

In the Matter of David Zaire, Petitioner, v Dale Artus, as Superintendent of Clinton Correctional Facility, Respondent.

—[*1] David Zaire, Dannemora, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

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

Petitioner commenced this CPLR article 78 proceeding challenging a tier II disciplinary determination finding him guilty of interference with an employee. Our review of the record reflects that the determination of guilt is supported by substantial evidence consisting of the misbehavior report as well as testimony adduced at the hearing (see Matter of Tafari v Selsky, 45 AD3d 1139, 1139 [2007]). Regarding petitioner's contention that the misbehavior report was issued in retaliation for his filing of grievances, a credibility issue was created for resolution by the Hearing Officer (see Matter of Lashley v Lindsay, 45 AD3d 1073, 1073-1074 [2007]). Petitioner's allegation that the Hearing Officer was biased is unsubstantiated in the record and, in any event, there is no indication that the determination in issue flowed from any purported bias (see Matter of Burgess v Goord, 45 AD3d 1144, 1145 [2007]). We have examined petitioner's remaining assertions, including his claim that the hearing was untimely, and find them to be unavailing.

Spain, J.P., Carpinello, Rose, Lahtinen and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.