Matter of Marino v Racette

Matter of Marino v Racette 2016 NY Slip Op 07360 Decided on November 10, 2016 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: November 10, 2016
522023

[*1]In the Matter of LEO A. MARINO, Petitioner,

v

STEVEN RACETTE, as Superintendent of Clinton Correctional Facility, Respondent.

Calendar Date: September 20, 2016
Before: Garry, J.P., Egan Jr., Lynch, Rose and Devine, JJ.

Leo A. Marino, Malone, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco 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 Clinton County) to review a determination of respondent finding petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with disobeying a direct order, being out of place and creating a disturbance after he went to the law library and failed to report to work in the mess hall as scheduled. Following a tier II disciplinary hearing, petitioner was found guilty of being out of place and not guilty of the remaining charges. The determination was affirmed upon administrative appeal, and this CPLR article 78 proceeding ensued.

We confirm. Notwithstanding petitioner's contention to the contrary, the misbehavior report and petitioner's testimony

provide substantial evidence to support the determination of guilt (see Matter of A'Gard v LaValley, 104 AD3d 1031, 1031 [2013]; Matter of Lebron v Artus, 35 AD3d 1108, 1109 [2006], lv denied 8 NY3d 810 [2007]). To the extent that petitioner contends that the Hearing Officer predetermined his guilt, the record demonstrates that the determination of guilt was the result of the evidence and did not flow from any alleged bias (see Matter of Harding v Prack, 118 AD3d 1231, 1232 [2014]; Matter of Pine v Fischer, 118 AD3d 1196, 1198 [2014], lv denied 24 NY3d 904 [2014]). Petitioner's remaining contentions are not preserved for this Court's review.

Garry, J.P., Egan Jr., Lynch, Rose and Devine, JJ., concur.

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