IN RE: Edwin GIMENEZ

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

IN RE: Edwin GIMENEZ, Petitioner, v. Dale ARTUS, as Superintendent of Clinton Correctional Facility, Respondent.

Decided: June 25, 2009

Before:  CARDONA, P.J., SPAIN, KANE, STEIN and McCARTHY, JJ. Edwin Gimenez, Dannemora, 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 Clinton County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner interrupted a discussion between two correction officers and then refused directives by one of the officers to be quiet and sit down.   As a result, he was charged in a misbehavior report with verbal harassment, making threats and refusing a direct order.   Following a tier II disciplinary hearing, petitioner was found guilty of refusing a direct order and the determination was later affirmed on administrative appeal.   This CPLR article 78 proceeding ensued.

 We confirm.   The misbehavior report, together with the testimony of the correction officers present during the incident, provide substantial evidence supporting the determination of guilt (see Matter of Perez v. Dubray, 55 A.D.3d 1119, 865 N.Y.S.2d 765 [2008];  Matter of Fews v. Goord, 54 A.D.3d 1073, 1074, 863 N.Y.S.2d 836 [2008] ) and any contradictions between the testimony of Officer D. Barrierre and Officer Bunker created a credibility issue for the Hearing Officer to resolve (see Matter of Pena v. Selsky, 53 A.D.3d 938, 939, 861 N.Y.S.2d 532 [2008] ).   We reject petitioner's assertion that he was improperly denied the right to call certain correctional employees as witnesses inasmuch as such individuals' testimony would have been irrelevant since they were not present at the time of the incident and had no personal knowledge of the facts (see Matter of Hannah v. Burge, 43 A.D.3d 1234, 841 N.Y.S.2d 719 [2007];  Matter of Lee v. Goord, 36 A.D.3d 1176, 1177, 827 N.Y.S.2d 373 [2007] ).   We also find no support in the record for petitioner's claim that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Purcell v. McKoy, 54 A.D.3d 1113, 1114, 864 N.Y.S.2d 574 [2008];  Matter of Webb v. Leclaire, 52 A.D.3d 1131, 1133, 862 N.Y.S.2d 129 [2008] ).   We have reviewed petitioner's remaining contentions and find them to be without merit.

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

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