Matter of White v Fischer

Matter of Matter of White v Fischer 2012 NY Slip Op 04060 Decided on May 24, 2012 Appellate Division, Third 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 and Entered: May 24, 2012
513183

[*1]In the Matter of JOHN H. WHITE, Petitioner,

v

BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: April 4, 2012
Before: Mercure, J.P., Lahtinen, Spain, Stein and Egan Jr., JJ.


John H. White, Malone, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany
(Marlene O. Tuczinski of counsel), for respondent.


MEMORANDUM AND JUDGMENT

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 which found petitioner guilty of violating certain prison disciplinary rules.

As a result of his failure to provide a urine sample for testing, petitioner was charged in a misbehavior report with refusing a direct order and violating urinalysis testing procedures. He was found guilty of the charges at the conclusion of a tier III disciplinary hearing, and the determination was affirmed upon administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the hearing testimony, provide substantial evidence supporting the determination of guilt (see Matter of Sital v Fischer, 72 AD3d 1306, 1307 [2010], lv dismissed 15 NY3d 823 [2010]; Matter of Credle v Selsky, 46 AD3d 989, 990 [2007]). Petitioner's claim that the misbehavior report was filed in retaliation for a grievance presented a credibility issue for the Hearing Officer to resolve (see Matter of Sital v Fischer, 72 AD3d at 1307; Matter of Becker v Goord, 13 AD3d 947, 948 [2004]). While petitioner maintains that the Hearing Officer did not give proper credit to his defense, this is not indicative of bias, and there is nothing in the record to suggest that the determination flowed from any alleged bias on the part of the Hearing Officer (see Matter of Marino v New York State [*2]Dept. of Correctional Servs., 41 AD3d 1004, 1005 [2007], appeal dismissed, lv denied 9 NY3d 940 [2007]; Matter of Hoover v Goord, 38 AD3d 1069, 1070 [2007], lv denied 8 NY3d 816 [2007]).

Mercure, J.P., Lahtinen, Spain, Stein and Egan Jr., JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.