Opinion
2012-04-19
In the Matter of Darrell McKINNEY, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Darrell McKinney, Pine City, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Owen W. Demuth of counsel), for respondent.
Darrell McKinney, Pine City, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Owen W. Demuth of counsel), for respondent.
Before: PETERS, P.J., ROSE, LAHTINEN, STEIN and McCARTHY, JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.
Petitioner was charged in a misbehavior report with violating the prison disciplinary rule prohibiting inmates from possessing, among other things, Uniform Commercial Code or “Redemptive Process” materials after a document he submitted for typing was confiscated as a suspected redemptive document. Following a tier III disciplinary hearing, he was found guilty of the charge. The determination was upheld on administrative appeal, prompting the commencement of this CPLR article 78 proceeding.
According to respondent, the “Redemptive Process” refers to a scheme by certain inmates involving, among other things, the use of Uniform Commercial Code forms to file baseless liens in order to harass government employees and officials.
We confirm. The detailed misbehavior report, together with the hearing testimony and documentary evidence, provide substantial evidence supporting the determination of guilt ( see Matter of Mullady v. Bezio, 87 A.D.3d 765, 766, 928 N.Y.S.2d 149 [2011]; Matter of Bunting v. Fischer, 85 A.D.3d 1473, 1474, 926 N.Y.S.2d 206 [2011], lv. denied 17 N.Y.3d 712, 2011 WL 4916599 [2011] ). To the extent that petitioner argues that the confiscated document does not fit within the scope of the applicable rule ( see 7 NYCRR 270.2[B][14][xx] ), a Senior Attorney with the Department of Corrections and Community Supervision testified that the document violated the rule ( see Matter of Bunting v. Fischer, 85 A.D.3d at 1474, 926 N.Y.S.2d 206), thereby creating a credibility issue for the Hearing Officer to resolve ( see Matter of Pettus v. New York State Dept. of Correctional Servs., 73 A.D.3d 1411, 1411, 902 N.Y.S.2d 690 [2010] ).
Petitioner's various procedural arguments have been examined and found to be without merit. We find no error in the Hearing Officer's removal of petitioner from the hearing given his argumentative and disruptive behavior ( see Matter of Jackson v. Fischer, 67 A.D.3d 1207, 1208, 890 N.Y.S.2d 144 [2009] ). Nor do we find any “indication that the Hearing Officer was biased or that the determination flowed from any alleged bias” ( Matter of Dawes v. Venettozzi, 87 A.D.3d 1219, 1220, 929 N.Y.S.2d 771 [2011], lv. denied 18 N.Y.3d 803, 2012 WL 44449 [2012] ). As for petitioner's contention that the subject rule is unconstitutional, this claim is not properly before us inasmuch as “it must first be raised in the context of the prison grievance procedure” ( Matter of Samuels v. Department of Correctional Servs. Staff, 84 A.D.3d 1629, 1630, 923 N.Y.S.2d 309 [2011] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.