IN RE: Sincere McKINLEY (2007)

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, a diabetic, was issued a syringe containing insulin for use in his cell by a facility nurse.   He began arguing with the nurse, thereby detaining her from dispensing medication to other inmates, and ignored her directive to return the syringe after he used it.   As a result, he was charged in a misbehavior report with harassment, possessing unauthorized medication, interfering with an employee and refusing a direct order.   At the conclusion of a tier III disciplinary hearing, he was found guilty of all of the charges except for harassment.   After the determination was affirmed on administrative appeal, he commenced this CPLR article 78 proceeding.

We confirm.   Initially, upon reviewing the record of the disciplinary hearing, we do not find that there are gaps in the transcript which prevent meaningful review (see Matter of Ford v. Smith, 23 A.D.3d 829, 829, 805 N.Y.S.2d 663 [2005], lv. denied 6 N.Y.3d 708, 813 N.Y.S.2d 44, 846 N.E.2d 475 [2006];  Matter of Michaelides v. Goord, 300 A.D.2d 718, 719, 749 N.Y.S.2d 906 [2002] ).   Rather, the misbehavior report, together with the testimony of the nurse and correction officers familiar with the incident, provide substantial evidence supporting the determination of guilt (see Matter of Odom v. Selsky, 37 A.D.3d 923, 924, 829 N.Y.S.2d 282 [2007];  Matter of Davila v. Selsky, 29 A.D.3d 1247, 1248, 814 N.Y.S.2d 830 [2006] ).   There is no merit to petitioner's claim that the hearing was not completed in a timely manner as the necessary extensions were obtained and the hearing was actually completed four days prior to the deadline provided for in the last extension (see 7 NYCRR 251-5.1[b];  Matter of Farrell v. Selsky, 32 A.D.3d 1103, 1104, 821 N.Y.S.2d 298 [2006];  Matter of James v. Goord, 28 A.D.3d 885, 886, 812 N.Y.S.2d 713 [2006] ).   Likewise, there is no indication that the Hearing Officer was biased or that the determination at issue flowed from any alleged bias (see Matter of Nelson v. Goord, 33 A.D.3d 1135, 1136, 822 N.Y.S.2d 816 [2006] ).   Petitioner's remaining contentions have been examined and found to be unpersuasive.

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