IN RE: Herbert BURGESS (2006)

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 a misbehavior report with violating the prison disciplinary rules that prohibit unauthorized possession of a controlled substance and smuggling after he enclosed a quantity of heroin in separate letters mailed to the Governor and the United States Department of Justice Drug Enforcement Administration in an alleged effort to expose a drug-selling operation within the correctional facility involving inmates and correction officers.   Following a tier III disciplinary hearing, petitioner was found guilty of the charges and the determination was affirmed on administrative appeal.   This CPLR article 78 proceeding ensued.

 The misbehavior report and petitioner's acknowledgment that he wrote the letters and enclosed the heroin, together with the testimony of the correction officer who investigated the incident and authored the misbehavior report, provide substantial evidence to support the determination of guilt (see Matter of Wright v. Goord, 19 A.D.3d 855, 855, 797 N.Y.S.2d 167 [2005], lv. denied 5 N.Y.3d 711, 804 N.Y.S.2d 35, 837 N.E.2d 734 [2005];  Matter of Benton v. Couture, 269 A.D.2d 642, 643, 703 N.Y.S.2d 558 [2000] ), regardless of petitioner's motivation in sending the letters.   Furthermore, we reject petitioner's contention that the Hearing Officer was precluded from presiding at the disciplinary hearing because he was named by petitioner as a defendant in a pending federal lawsuit (see Matter of Chavis v. Goord, 8 A.D.3d 786, 787-788, 777 N.Y.S.2d 918 [2004];  Matter of Grant v. Senkowski, 146 A.D.2d 948, 949-950, 537 N.Y.S.2d 323 [1989];  see also 7 NYCRR 254.1).   In any event, the record establishes that petitioner was afforded a fair and impartial hearing and that the outcome of the hearing flowed from the evidence presented, not from any alleged bias on the part of the Hearing Officer (see Matter of Santana v. Selsky, 23 A.D.3d 722, 723, 803 N.Y.S.2d 313 [2005];  Matter of Di Rose v. Coombe, 233 A.D.2d 799, 801, 650 N.Y.S.2d 429 [1996] ).

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