IN RE: Nelson LORENZO (2004)

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Sullivan County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

As a result of a gang symbol being discovered on the inside door of petitioner's medicine cabinet, petitioner was charged with violating the prison disciplinary rules that prohibit the destruction of state property and the display of unauthorized organizational material.   Following a disciplinary hearing, petitioner was found guilty of displaying the unauthorized material but not guilty of destroying state property.   Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding challenging the determination of guilt.

We are unpersuaded by petitioner's assertion that the finding of not guilty on the destruction of state property charge was inconsistent with the finding that petitioner displayed unauthorized organizational material.   Consistent with the not guilty determination, petitioner denied putting the symbol on the medicine cabinet door and testimony established that the symbol looked worn and appeared to have been on the medicine cabinet door for some time. Nevertheless, petitioner was aware that the display of such material was prohibited, but took no action to remove or report it during the seven months that he occupied the cell.   Under these circumstances, we find no reason to disturb the determination of guilt (see Matter of Tenace v. Goord, 278 A.D.2d 549, 717 N.Y.S.2d 408 [2000], lv. denied 96 N.Y.2d 707, 725 N.Y.S.2d 637, 749 N.E.2d 206 [2001] ).   Furthermore, there is nothing to indicate that the outcome of the hearing flowed from any alleged bias on the part of the Hearing Officer (see Matter of Nieves v. Goord, 2 A.D.3d 1173, 768 N.Y.S.2d 711 [2003] ).

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