IN RE: Rory DOLAN

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

IN RE: Rory DOLAN, Petitioner, v. Glenn S. GOORD, as Commissioner of Correctional Services, Respondent.

Decided: June 28, 2007

Before:  CREW III, J.P., PETERS, SPAIN, ROSE and KANE, JJ. Rory Dolan, Malone, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Patrick Barnett-Mulligan 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 a prison disciplinary rule.

 Petitioner challenges a determination finding him guilty of violating a facility movement regulation.   We confirm.   The misbehavior report with a specific account of the incident, written by the involved correction officer, provides substantial evidence supporting the determination of guilt (see Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 [1990] ).   Petitioner's exculpatory statements as to his reasoning and the nature of his refusal presented credibility and mitigation issues for the Hearing Officer to resolve (see Matter of Miller v. New York State Dept. of Correctional Servs., 295 A.D.2d 714, 714-715, 743 N.Y.S.2d 632 [2002] ).   However, as a prison inmate, petitioner did not have the right to choose whether he would comply with the regulation (see Matter of Rivera v. Smith, 63 N.Y.2d 501, 515-516, 483 N.Y.S.2d 187, 472 N.E.2d 1015 [1984] ).

Petitioner's procedural objections are unpersuasive.   A review of the misbehavior report reveals that it disclosed the relevant details with enough particularity to enable petitioner to prepare a defense (see Matter of Quintana v. Selsky, 268 A.D.2d 624, 625, 701 N.Y.S.2d 463 [2000] ).   The record demonstrates that the hearing was conducted in a fair and impartial manner and the determination did not flow from any bias on the part of the Hearing Officer (see Matter of Cayenne v. Goord, 16 A.D.3d 782, 783-784, 790 N.Y.S.2d 762 [2005] ).   The Hearing Officer appropriately addressed each of petitioner's requests and complaints. Petitioner's remaining contentions, to the extent preserved, have been reviewed and determined to be without merit.

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

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