IN RE: Isidoro De LEON

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

IN RE: Isidoro De LEON, Petitioner, v. Glenn S. GOORD, as Commissioner of Correctional Services, Respondent.

Decided: January 24, 2002

Before:  CARDONA, P.J., CREW III, SPAIN, CARPINELLO and ROSE, JJ. Isidoro De Leon, Pine City, petitioner pro se. Eliot Spitzer, Attorney General (Wayne L. Benjamin of counsel), Albany, 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 found guilty of violating prison disciplinary rules prohibiting, inter alia, assault on an inmate, violent conduct, fighting and possession of a weapon.   At the disciplinary hearing, two correction officers testified that they observed petitioner making stabbing movements towards another inmate with whom he was fighting.   In addition, both correction officers testified that as they approached the scene, they observed petitioner throw an object on the catwalk, which, upon recovery, turned out to be a ballpoint pen with a sharpened piece of metal inserted into its tip and a lanyard around its other end.   The victim was treated for stab wounds to his back, neck and head.

 Additional evidence admitted at the disciplinary hearing included the misbehavior report, the unusual incident report and a photograph of the weapon.   This evidence, coupled with the correction officers' testimony, constitute substantial evidence of petitioner's guilt (see, Matter of Bostic v. Coughlin, 216 A.D.2d 766, 628 N.Y.S.2d 448).   Therefore, the determination will not be disturbed (see, Matter of Maldonado v. Selsky, 281 A.D.2d 664, 721 N.Y.S.2d 568;  Matter of Victor v. Goord, 253 A.D.2d 971, 680 N.Y.S.2d 118).   Contrary testimony produced by petitioner presented an issue of credibility for the Hearing Officer to resolve (see, Matter of Reese v. Goord, 249 A.D.2d 639, 670 N.Y.S.2d 811, lv. denied 92 N.Y.2d 808, 678 N.Y.S.2d 593, 700 N.E.2d 1229).

 Petitioner's assertions of Hearing Officer bias are refuted by the record which demonstrates that he received a fair and impartial hearing.   That the Hearing Officer ultimately ruled against petitioner does not lead to the conclusion that he was biased (see, Matter of Steward v. Selsky, 266 A.D.2d 605, 697 N.Y.S.2d 745;  Matter of Barreto v. Coombe, 238 A.D.2d 657, 656 N.Y.S.2d 969).   Nor is there any indication that the outcome of the hearing was influenced by any factor other than the substantial evidence of petitioner's guilt (see, Matter of Nicholas v. Schriver, 259 A.D.2d 863, 687 N.Y.S.2d 453).   Petitioner's remaining contentions have been reviewed and found to be without merit.

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

CARPINELLO, J.

CARDONA, P.J., CREW III, SPAIN and ROSE, JJ., concur.

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