Opinion
07-21-2016
In the Matter of Melvin JOHNSON, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Melvin Johnson, Wende Road, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Melvin Johnson, Wende Road, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Opinion 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 a prison disciplinary rule. Petitioner was charged in a misbehavior report with using a controlled substance after a sample of his urine twice tested positive for the presence of buprenorphine. He was found guilty of the charge following a tier III disciplinary hearing, and the determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
Although the proceeding was improperly transferred to this Court as the verified petition does not raise the issue of substantial evidence, we nevertheless retain jurisdiction in the interest of judicial economy (see
We confirm. Upon reviewing the record, we find no merit to petitioner's claim that he was denied a fair hearing. Significantly, there is no indication that the Hearing Officer engaged in conduct suggestive of bias or that the determination flowed from any alleged bias (see Matter of Williams v. Prack, 130 A.D.3d 1123, 1124, 11 N.Y.S.3d 750 [2015] ; Matter of Paddyfote v. Fischer, 118 A.D.3d 1240, 1241, 987 N.Y.S.2d 719 [2014] ). Furthermore, petitioner's challenge to the tier II designation assigned to the matter has not been preserved for our review due to his failure to raise it at the hearing (see Matter of Joseph v. Prack, 133 A.D.3d 1014, 1015, 18 N.Y.S.3d 893 [2015] ; Matter of Baez v. Bellnier, 131 A.D.3d 771, 14 N.Y.S.3d 718 [2015] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
LAHTINEN, J.P., GARRY, ROSE, LYNCH and MULVEY, JJ., concur.
Matter of Toliver v. New York State Dept. of Corr. & Community Supervision, 127 A.D.3d 1536, 1537 n. 1, 6 N.Y.S.3d 331 [2015] ).