Opinion
2014-07-31
In the Matter of Adrian BELLINGER, Petitioner, v. D. VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Adrian Bellinger, Albion, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Adrian Bellinger, Albion, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: LAHTINEN, J.P., STEIN, McCARTHY, ROSE and EGAN JR., JJ.
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 the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, was charged in a misbehavior report with refusing a direct order, possession of drugs and possession of gang materials. The charges stemmed from an incident wherein a correction officer ordered petitioner to empty his pockets. Petitioner responded by throwing three “joint-type” cigarettes on the ground; he did not, however, produce a note secreted in one of his pockets. Following a tier III disciplinary hearing, the Hearing Officer found petitioner guilty as charged and assessed a penalty that included a recommended loss of three months of good time. All of the charges except for refusing a direct order were dismissed upon administrative appeal, but the loss of good time was not modified. This CPLR article 78 proceeding ensued.
We confirm. Substantial evidence, in the form of the misbehavior report and the testimony of the correction officer who ordered petitioner to empty his pockets and later found the note during a pat frisk, supports the determination that petitioner refused a direct order ( see Matter of Matthews v. Goord, 47 A.D.3d 1043, 1043, 849 N.Y.S.2d 132 [2008];Matter of Archie v. Great Meadow Correctional Facility, 243 A.D.2d 808, 808, 665 N.Y.S.2d 349 [1997] ). Contrary to petitioner's contention, the Hearing Officer was not required to recuse herself because she was on duty at the time of the incident and was aware that it had occurred ( see Matter of Turner v. Fischer, 100 A.D.3d 1310, 1310–1311, 954 N.Y.S.2d 281 [2012];Matter of Vega v. New York State Dept. of Correctional Servs., 92 A.D.3d 991, 992, 937 N.Y.S.2d 705 [2012] 7 NYCRR 254.1). As a final matter, we cannot say that the recommended loss of good time is shocking to one's sense of fairness, notwithstanding the fact that it remained unchanged despite all but one of the charges against petitioner having been dismissed ( see Matter of Tafari v. Prack, 89 A.D.3d 1311, 1312, 932 N.Y.S.2d 599 [2011],lv. denied18 N.Y.3d 808, 2012 WL 539906 [2012] ).
Petitioner's remaining contentions have been considered and are unavailing.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.