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

IN RE: John P. ROYSTER, petitioner, v. Glenn GOORD, etc., et al., respondents.

Decided: February 28, 2006

STEPHEN G. CRANE, J.P., GLORIA GOLDSTEIN, ROBERT A. LIFSON, and MARK C. DILLON, JJ. John P. Royster, Stormville, N.Y., petitioner pro se. Eliot Spitzer, Attorney-General, New York, N.Y. (Michelle Aronowitz and Marion R. Buchbinder of counsel), for respondents.

Proceeding pursuant to CPLR article 78 to review a determination of the Superintendent of Green Haven Correctional Facility dated April 13, 2004, which affirmed a determination of a hearing officer dated March 31, 2004, made after a Tier II disciplinary hearing, finding the petitioner guilty of violating Rules 107.11 (7 NYCRR 270.2[B][8][ii] ) and 107.20 (7 NYCRR 270.2[B][8][iii] ), and imposing a penalty.

ADJUDGED that the petition is granted, on the law, without costs or disbursements, to the extent that so much of the determination as affirmed the determination of the hearing officer finding the petitioner guilty of violating Rule 107.11 (7 NYCRR 270.2[B][8][ii] ) is annulled, that finding is vacated, that charge is dismissed, the penalty imposed with respect to that charge is vacated, the respondents are directed to expunge all references to that finding from the petitioner's institutional record, the petition is otherwise denied, the determination is otherwise confirmed, and the proceeding is otherwise dismissed.

In this proceeding pursuant to CPLR article 78 to review a prison disciplinary determination, the petitioner contends that the determination was not supported by substantial evidence (see CPLR 7803[4];  People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997;  Matter of Ramsey v. Phillips, 11 A.D.3d 470, 782 N.Y.S.2d 373).

 The hearing officer found that the petitioner made a single, false complaint to a sergeant that a correction officer had assaulted him.   Contrary to the conclusion of the hearing officer, a single false, but non-abusive, complaint about, rather than to, a correction officer does not constitute harassment of that officer under Rule 107.11 (7 NYCRR 270.2[B][8][ii];  cf. Matter of Felder v. Herbert, 261 A.D.2d 959, 689 N.Y.S.2d 922;  Matter of Readdon v. Mitchell, 210 A.D.2d 710, 621 N.Y.S.2d 935;  compare Penal Law § 240.26[3] with Rule 107.11).

 The hearing officer's determination that the petitioner lied about the alleged assault, thus violating Rule 107.20 (7 NYCRR 270.2[B][8][iii] ), however, was supported by substantial evidence (see Matter of Cipher v. Goord, 278 A.D.2d 846, 719 N.Y.S.2d 414;  Matter of Marrero v. Coughlin, 208 A.D.2d 1016, 1017, 617 N.Y.S.2d 236).   At a medical examination conducted approximately four hours after the alleged assault, there was no evidence that the petitioner had been assaulted.   Given the petitioner's statement at the hearing that his eyes were “so bloody [he] could barely make out the pupils” immediately after the alleged incident, the lack of any physical evidence was sufficient to support the hearing officer's determination that the petitioner lied about the assault.

 The petitioner failed to preserve for review his claim that the hearing officer was biased, by failing to raise that issue at the hearing or in his administrative appeal (see Matter of Blackshear v. Coughlin, 185 A.D.2d 493, 586 N.Y.S.2d 34).   In any event, this claim is without merit.   The record establishes that the hearing was conducted fairly, and the mere fact that the hearing officer ruled against the petitioner does not establish bias (see Matter of Martinez v. Scully, 194 A.D.2d 679, 599 N.Y.S.2d 104).

 The petition raises a substantial evidence question, and the remaining points raised by the petitioner were not objections that could have terminated the proceeding within the meaning of CPLR 7804(g).  Thus, the Supreme Court should have transferred the proceeding to the Appellate Division without deciding the remaining points (see Matter of Al Turi Landfill v. New York State Dept. of Envtl. Conservation, 289 A.D.2d 231, 735 N.Y.S.2d 61, affd. 98 N.Y.2d 758, 751 N.Y.S.2d 827, 781 N.E.2d 892).   Nonetheless, since the record is now before us, we review those issues de novo and find them to be without merit.

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