IN RE: Jose DE LA CRUZ

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

IN RE: Jose DE LA CRUZ, appellant, v. Donald SELSKY, respondent.

Decided: January 30, 2007

A. GAIL PRUDENTI, P.J., WILLIAM F. MASTRO, FRED T. SANTUCCI, and MARK C. DILLON, JJ. Jose De La Cruz, Malone, N.Y., appellant pro se. Andrew M. Cuomo, Attorney-General, New York, N.Y. (Robert H. Easton and David Lawrence III, of counsel), for respondent.

Proceeding pursuant to CPLR article 78 to review a determination of the Superintendent of the Fishkill Correctional Facility, dated August 6, 2004, which confirmed a determination of a Hearing Officer dated May 18, 2004, made after a Tier III disciplinary hearing, finding the petitioner guilty of violating prison rules and imposing a penalty.

ADJUDGED that the petition is denied, the determination is confirmed, and the proceeding is dismissed, on the merits, without costs or disbursements.

 When reviewing a prison disciplinary determination, the court must decide only whether the determination was supported by substantial evidence (see Matter of Ramsey v. Phillips, 11 A.D.3d 470, 782 N.Y.S.2d 373;  Matter of Glover v. Goord, 262 A.D.2d 483, 484, 691 N.Y.S.2d 784).   Here, a review of the record, including the testimony of the witnesses, reveals that there was substantial evidence to support the respondent's determination that the petitioner violated prison rules. The credibility issues were resolved by the Hearing Officer as the trier of fact and we perceive no basis upon which to disturb his determination (see Matter of Gilzene v. McGinnis, 300 A.D.2d 658, 659, 751 N.Y.S.2d 785;  Matter of Ramos v. Goord, 286 A.D.2d 392, 728 N.Y.S.2d 713;  Matter of Rivera v. Selsky, 266 A.D.2d 295, 698 N.Y.S.2d 273).

 Contrary to the petitioner's contentions, there is no basis upon which to conclude that the Hearing Officer was biased against him.   The mere fact that the Hearing Officer ruled against the petitioner does not establish bias (see Matter of Royster v. Goord, 26 A.D.3d 503, 505, 810 N.Y.S.2d 212), nor does the fact that the Hearing Officer may have expressed some frustration with the petitioner's insistence upon repeatedly stating the same argument throughout the hearing, despite the Hearing Officer's reassurance that the point was made and understood (see Matter of Miller v. Goord, 2 A.D.3d 928, 930, 767 N.Y.S.2d 704;  Matter of Joyce v. Goord, 246 A.D.2d 926, 667 N.Y.S.2d 833).

The petitioner's remaining contentions are without merit.

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