IN RE: Joseph PARKS (2008)

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 the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with soliciting goods or services, possessing unauthorized organizational materials and failing to comply with facility correspondence procedures.   At the conclusion of the tier II disciplinary hearing that followed, petitioner was found guilty of possessing unauthorized organizational materials-namely, a photograph of himself depicting a gang symbol-and not guilty of the remaining charges, and a penalty was imposed.   That determination was affirmed upon administrative appeal, prompting petitioner to commence this proceeding pursuant to CPLR article 78 seeking to annul the underlying determination.

 We confirm.   The misbehavior report, together with the photograph of petitioner and the testimony of a senior counselor trained in identifying gang-related materials, provides substantial evidence of petitioner's guilt (see Matter of Williams v. Goord, 13 A.D.3d 760, 761, 785 N.Y.S.2d 615 [2004];  Matter of Campoverde v. Selsky, 9 A.D.3d 722, 722-723, 779 N.Y.S.2d 841 [2004];  Matter of Delos Santos v. Goord, 4 A.D.3d 709, 710, 772 N.Y.S.2d 615 [2004];  Matter of Knickerbocker v. Goord, 276 A.D.2d 1008, 715 N.Y.S.2d 454 [2000];  Matter of Feliciano v. Selsky, 263 A.D.2d 810, 810-811, 694 N.Y.S.2d 798 [1999] ).   Petitioner's testimony that the hand gesture at issue constituted a form of meditation used in the practice of his religion presented a credibility issue for the Hearing Officer to resolve (see Matter of Smith v. Goord, 45 A.D.3d 1119, 844 N.Y.S.2d 919 [2007] ).   As for the senior counselor's failure to endorse the misbehavior report, this omission is not fatal as the counselor's name and position appear on the face of the misbehavior report, petitioner had the opportunity to question this individual at the hearing and petitioner has failed to demonstrate any resultant prejudice (see Matter of Winbush v. Goord, 6 A.D.3d 821, 822, 773 N.Y.S.2d 918 [2004];  see also Matter of Blackwell v. Goord, 12 A.D.3d 816, 817, 784 N.Y.S.2d 244 [2004] ).   Finally, our review of the record discloses no evidence of hearing officer bias or any indication that the underlying determination flowed from such alleged bias (see Matter of Burgess v. Goord, 45 A.D.3d 1144, 844 N.Y.S.2d 914 [2007];  Matter of Witkowski v. Goord, 45 A.D.3d 1068, 1069, 845 N.Y.S.2d 863 [2007] ).

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