Opinion
532608
09-23-2021
In the Matter of Christian URENA, Petitioner, v. William KEYSER, as Superintendent of Sullivan Correctional Facility, Respondent.
Christian Urena, Fallsburg, petitioner pro se. Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Christian Urena, Fallsburg, petitioner pro se.
Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Clark, Aarons and Reynolds Fitzgerald, JJ.
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 finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with being out of place, refusing a direct order and committing a movement violation. According to the misbehavior report, a correction officer assigned petitioner, a custodial maintenance worker, the task of cleaning hallways in the north complex of the correctional facility and told petitioner to report back to him when the task was complete. When the correction officer made rounds of the north complex area, petitioner was observed in the barbershop getting an unauthorized haircut. Following a tier II disciplinary hearing, petitioner was found guilty of all charges, and that determination was affirmed upon administrative appeal. This CPLR article 78 proceeding ensued.
Contrary to petitioner's contention, the misbehavior report and testimony at the hearing, as well as petitioner's admissions, provide substantial evidence to support the determination of guilt (see Matter of Cowart v. Burnett, 159 A.D.3d 1253, 1253–1254, 70 N.Y.S.3d 401 [2018] ; Matter of Lynch v. Griffin, 148 A.D.3d 1436, 1436–1437, 50 N.Y.S.3d 186 [2017] ). Notwithstanding petitioner's exculpatory explanation, the record establishes that petitioner, instead of reporting back to the correction officer, got a haircut and then returned to his housing unit.
To the extent that petitioner asserts that the Hearing Officer was biased and shifted the burden of proof, such contentions are not preserved for our review as petitioner did not raise these issues in his administrative appeal (see Matter of Duchnowski v. Annucci, 169 A.D.3d 1137, 1138, 94 N.Y.S.3d 389 [2019] ; Matter of Wigfall v. New York State Dept. of Corr. & Community Supervision, 160 A.D.3d 1332, 1333, 75 N.Y.S.3d 341 [2018] ). Were we to consider such issues, we would find that the determination of guilt flowed from the evidence presented and not from any bias on the part of the Hearing Officer (see Matter of Miller v. Costello, 304 A.D.2d 916, 917, 756 N.Y.S.2d 911 [2003] ; Matter of Steward v. Selsky, 266 A.D.2d 605, 606, 697 N.Y.S.2d 745 [1999] ).
Garry, P.J., Egan Jr., Clark, Aarons and Reynolds Fitzgerald, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.