IN RE: Julio Isley SMITH (2009)

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.

Petitioner was charged in three separate misbehavior reports with violating various prison disciplinary rules.   At the conclusion of the tier III disciplinary hearing that followed, the Hearing Officer found petitioner guilty of all but one of the charges and imposed a penalty.   Petitioner's administrative appeal proved unsuccessful, prompting him to commence this CPLR article 78 proceeding challenging the determination of guilt.

To the extent that petitioner raises a substantial evidence claim, we find that the misbehavior reports and petitioner's admissions constitute substantial evidence of petitioner's guilt (see Matter of Tinnirello v. Selsky, 51 A.D.3d 1238, 1239, 858 N.Y.S.2d 806 [2008];  Matter of Mariani v. Selsky, 47 A.D.3d 1146, 1146-1147, 850 N.Y.S.2d 686 [2008] ).   Although petitioner contends that the misbehavior reports were issued in retaliation for complaints he had filed against correction officials, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Belot v. Selsky, 56 A.D.3d 911, 868 N.Y.S.2d 324 [2008];  Matter of Salahuddin v. Goord, 49 A.D.3d 1107, 856 N.Y.S.2d 890 [2008], lv. denied 10 N.Y.3d 717, 862 N.Y.S.2d 469, 892 N.E.2d 863 [2008] ).   Finally, petitioner's claim that the Hearing Officer admitted that he authored the disposition prior to the commencement of the hearing is both belied by the record and meritless.   A review of the hearing transcript fails to disclose any evidence of bias or that the determination flowed from any alleged bias (see Matter of Harvey v. Woods, 56 A.D.3d 829, 867 N.Y.S.2d 741 [2008];  Matter of Purcell v. McKoy, 54 A.D.3d 1113, 1114, 864 N.Y.S.2d 574 [2008] ).

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.