IN RE: Bernabe ENCARNACION (2007)

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of respondent Superintendent of Southport Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with making false statements and refusing a direct order.   Following a tier II disciplinary hearing, he was found guilty of both charges.   After an administrative appeal, the determination was affirmed.   Petitioner commenced this CPLR article 78 proceeding challenging the determination.

 The misbehavior report, together with the testimony of the nurse who investigated the matter, provide substantial evidence supporting the determination of guilt (see Matter of Price v. Goord, 29 A.D.3d 1203, 1204, 814 N.Y.S.2d 409 [2006];  Matter of Vizcaino v. Selsky, 26 A.D.3d 574, 808 N.Y.S.2d 825 [2006], lv. denied 7 N.Y.3d 708, 821 N.Y.S.2d 813, 854 N.E.2d 1277 [2006] ).   Petitioner's procedural objections are unpersuasive.   Petitioner was not improperly denied a Spanish-speaking assistant as his records indicate that he speaks English (see 7 NYCRR 251-4.1[a] [1];  see also Matter of Encarnacion v. Goord, 34 A.D.3d 1175, 824 N.Y.S.2d 492 [2006] ).   Furthermore, inasmuch as petitioner's non-inmate witness did not return the Hearing Officer's telephone call, petitioner was not deprived of his right to call witnesses (see Matter of Williams v. Goord, 242 A.D.2d 842, 662 N.Y.S.2d 617 [1997] ).   The record demonstrates that the hearing was conducted in a fair and impartial manner and the determination did not flow from any alleged bias on the part of the Hearing Officer (see Matter of Cayenne v. Goord, 16 A.D.3d 782, 783-784, 790 N.Y.S.2d 762 [2005];  Matter of Sanchez v. Selsky, 8 A.D.3d 846, 846, 778 N.Y.S.2d 561 [2004] ).   Petitioner's remaining contentions, to the extent preserved, have been reviewed and determined to be without merit.

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