Opinion
2014-03-26
In the Matter of Gerald PHILLIPS, petitioner, v. William LEE, etc., respondent.
Gerald Phillips, Stormville, N.Y., petitioner pro se. Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek and David Lawrence III of counsel), for respondent.
Gerald Phillips, Stormville, N.Y., petitioner pro se. Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek and David Lawrence III of counsel), for respondent.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.
Proceeding pursuant to CPLR article 78 to review a determination of the Superintendent of the Green Haven Correctional Facility, dated October 12, 2012, which affirmed the findings of a hearing officer dated October 5, 2012, made after a Tier II disciplinary hearing, finding the petitioner guilty of violating certain prison disciplinary rules, and imposing penalties.
ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, without costs or disbursements.
Contrary to the petitioner's contention, the hearing officer's determination that he was guilty of violating prison disciplinary rules was supported by substantial evidence in the record ( see Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477;Matter of Harris v. Kaplin, 102 A.D.3d 692, 692–693, 957 N.Y.S.2d 722;Matter of Mills v. Fischer, 85 A.D.3d 1033, 925 N.Y.S.2d 851;Matter of Haynes v. Bezio, 73 A.D.3d 1295, 1296, 903 N.Y.S.2d 165;Matter of Reyes v. Leclaire, 49 A.D.3d 884, 884–885, 853 N.Y.S.2d 899). Inconsistencies in the hearing testimony presented credibility issues that were resolved by the hearing officer, and we discern no basis in the record for disturbing his determination ( see Matter of Ojeda v. Venettozzi, 99 A.D.3d 914, 952 N.Y.S.2d 274;Matter of Applegate v. Heath, 88 A.D.3d 699, 700, 930 N.Y.S.2d 882;Matter of Costantino v. Goord, 38 A.D.3d 657, 658, 831 N.Y.S.2d 719;Matter of Goncalves v. Donnelly, 9 A.D.3d 721, 779 N.Y.S.2d 842).
The petitioner failed to demonstrate that the hearing officer was biased against him. The record demonstrates that the hearing was conducted in a fair and impartial manner and that the determination was not the result of any alleged bias on the part of the hearing officer ( see Matter of Harris v. Kaplin, 102 A.D.3d at 693, 957 N.Y.S.2d 722;Matter of Carlisle v. Lee, 96 A.D.3d 837, 946 N.Y.S.2d 483;Matter of Reyes v. Leclaire, 49 A.D.3d at 885, 853 N.Y.S.2d 899;Matter of Fernandez v. Goord, 27 A.D.3d 806, 807, 809 N.Y.S.2d 685;Matter of Goncalves v. Donnelly, 9 A.D.3d at 722, 779 N.Y.S.2d 842). Notwithstanding the petitioner's assertion to the contrary, “[t]he mere fact that the hearing officer ruled against the petitioner is insufficient to establish bias” (Matter of Martinez v. Scully, 194 A.D.2d 679, 680, 599 N.Y.S.2d 104).