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IN RE: Carlos LOZADA (2009)

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Carlos LOZADA, Petitioner, v. Catherine COOK, as Superintendent of Otisville Correctional Facility, Respondent.

Decided: November 19, 2009

Before:  MERCURE, J.P., SPAIN, KANE, KAVANAGH and McCARTHY, JJ. Carlos Lozada, Comstock, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

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 possession of contraband, smuggling and the unauthorized possession of departmental documents and disciplinary documents pertaining to another inmate.   Following a tier II disciplinary hearing, petitioner was found guilty of smuggling and the unauthorized possession of departmental documents and disciplinary documents pertaining to another inmate and found not guilty of possession of contraband.   This determination was affirmed on administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding.

 We confirm.   The misbehavior report, supporting documentation and the hearing testimony from the correction officer who authored the report provide substantial evidence to support the determination of guilt (see Matter of Arrollo v. Leclaire, 62 A.D.3d 1171, 1172, 878 N.Y.S.2d 637 [2009];  Matter of Wade v. Artus, 59 A.D.3d 793, 794, 873 N.Y.S.2d 754 [2009], appeal dismissed 12 N.Y.3d 872, 882 N.Y.S.2d 680, 910 N.E.2d 429 [2009] ).   We reject petitioner's contention that he was denied the right to call certain correctional employees as witnesses, inasmuch as such testimony would have been irrelevant, as none of the requested witnesses had personal knowledge of the facts surrounding petitioner's acquisition of the unauthorized documents (see Matter of Gimenez v. Artus, 63 A.D.3d 1461, 1462, 881 N.Y.S.2d 551 [2009];  Matter of Tirado v. Goord, 50 A.D.3d 1332, 1333, 854 N.Y.S.2d 822 [2008] ).   Finally, there is no indication in the record that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Peralta v. Fischer, 63 A.D.3d 1399, 1399, 880 N.Y.S.2d 581 [2009];  Matter of Cannon v. Fischer, 62 A.D.3d 1109, 1109, 877 N.Y.S.2d 922 [2009] ).

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

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