Opinion
No. 500841.
May 17, 2007.
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.
Sincere McKinley, Malone, petitioner pro se.
Andrew M. Cuomo, Attorney General, Albany (Patrick Barnett-Mulligan of counsel), for respondent.
Before: Cardona, P.J., Mercure, Spain, Lahtinen and Kane, JJ., concur.
Petitioner, a diabetic, was issued a syringe containing insulin for use in his cell by a facility nurse. He began arguing with the nurse, thereby detaining her from dispensing medication to other inmates, and ignored her directive to return the syringe after he used it. As a result, he was charged in a misbehavior report with harassment, possessing unauthorized medication, interfering with an employee and refusing a direct order. At the conclusion of a tier III disciplinary hearing, he was found guilty of all of the charges except for harassment. After the determination was affirmed on administrative appeal, he commenced this CPLR article 78 proceeding.
We confirm. Initially, upon reviewing the record of the disciplinary hearing, we do not find that there are gaps in the transcript which prevent meaningful review ( see Matter of Ford v Smith, 23 AD3d 829, 829, lv denied 6 NY3d 708; Matter of Michaelides v Goord, 300 AD2d 718, 719 [2002]). Rather, the misbehavior report, together with the testimony of the nurse and correction officers familiar with the incident, provide substantial evidence supporting the determination of guilt ( see Matter of Odom v Selsky, 37 AD3d 923, 924; Matter of Davila v Selsky, 29 AD3d 1247, 1248). There is no merit to petitioner's claim that the hearing was not completed in a timely manner as the necessary extensions were obtained and the hearing was actually completed four days prior to the deadline provided for in the last extension ( see 7 NYCRR 251-5.1 [b]; Matter of Farrell v Selsky, 32 AD3d 1103, 1104; Matter of James v Goord, 28 AD3d 885, 886). Likewise, there is no indication that the Hearing Officer was biased or that the determination at issue flowed from any alleged bias ( see Matter of Nelson v Goord, 33 AD3d 1135, 1136). Petitioner's remaining contentions have been examined and found to be unpersuasive.
Adjudged that the determination is confirmed, without costs, and petition dismissed.