IN RE: Sincere McKINLEY (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 respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner sent a letter to the Deputy Commissioner of Correctional Services insinuating that he would assault staff if he was not transferred to another correctional facility.   As a result, he was charged in a misbehavior report with making threats.   Following a tier III disciplinary hearing, petitioner was found guilty of the charge and the determination was affirmed on administrative review with a modified penalty.   This CPLR article 78 proceeding ensued.

 We confirm.   The misbehavior report, together with the testimony of the correction officer who prepared it as well as the letter that petitioner sent, constitute substantial evidence supporting the determination of guilt (see Matter of Rizzuto v. Goord, 35 A.D.3d 1078, 1079, 825 N.Y.S.2d 594 [2006];  Matter of Schuler v. McCray, 8 A.D.3d 777, 778, 778 N.Y.S.2d 237 [2004] ).   We reject petitioner's claim that he was improperly denied the right to call the Deputy Commissioner as a witness inasmuch as his testimony was not relevant to the charge (see Matter of Hynes v. Goord, 305 A.D.2d 829, 830, 758 N.Y.S.2d 552 [2003], lv. denied 100 N.Y.2d 510, 766 N.Y.S.2d 163, 798 N.E.2d 347 [2003];  Matter of Thomas v. Goord, 293 A.D.2d 787, 788, 739 N.Y.S.2d 498 [2002], lv. denied 98 N.Y.2d 613, 749 N.Y.S.2d 476, 779 N.E.2d 187 [2002] ).   Moreover, the record does not establish that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Nieves v. Goord, 39 A.D.3d 1104, 1105, 835 N.Y.S.2d 510 [2007] ).   Likewise, there is no merit to petitioner's contention that he was improperly excluded from the hearing as the transcript reveals that petitioner voluntarily removed himself (see Matter of Webb v. McGinnis, 271 A.D.2d 767, 768, 706 N.Y.S.2d 644 [2000] ).   In view of the foregoing, we find no reason to disturb the determination of guilt.

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