IN RE: Brian MORGAN

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

IN RE: Brian MORGAN, Petitioner, v. Glenn S. GOORD, as Commissioner of Correctional Services, et al., Respondents.

Decided: September 23, 2004

Before:  CARDONA, P.J., CREW III, CARPINELLO, MUGGLIN and ROSE, JJ. Brian Morgan, Comstock, petitioner pro se. Eliot Spitzer, Attorney General, Albany (Patrick Barnett-Mulligan of counsel), for respondents.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Franklin County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

 Petitioner commenced this CPLR article 78 proceeding challenging a determination finding him guilty of violating the prison disciplinary rules that prohibit smuggling and providing false information.   According to the misbehavior report, a small balloon fragment fell from petitioner's buttocks during a strip search.   Petitioner then denied that it came from him.   The misbehavior report, testimony at the hearing and the inferences to be drawn therefrom provide substantial evidence to support 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];  Matter of Price v. Goord, 301 A.D.2d 986, 754 N.Y.S.2d 453 [2003];  Matter of Cole v. Selsky, 269 A.D.2d 717, 704 N.Y.S.2d 672 [2000] ).

 We reject petitioner's assertion that he was denied due process because the balloon fragment was not produced at the hearing.   Inasmuch as it was not destroyed in bad faith but, rather, as a result of reasonable procedures used to test for controlled substances, he was not improperly denied access to the evidence (see Matter of Harris v. Selsky, 236 A.D.2d 723, 724, 654 N.Y.S.2d 423 [1997] ).   Petitioner's request for production of an unusual incident report was properly denied as there was no indication that any such report existed (see Matter of Dawes v. McClellan, 223 A.D.2d 890, 636 N.Y.S.2d 489 [1996] ).

We are also unpersuaded by petitioner's contention of hearing officer bias.   Even in light of the Hearing Officer's remarks and other conduct challenged by petitioner, our review of the hearing transcript fails to establish that the outcome of the hearing flowed from any alleged bias (see Matter of McClean v. Coombe, 242 A.D.2d 846, 662 N.Y.S.2d 277 [1997];  Matter of Taylor v. Selsky, 242 A.D.2d 772, 661 N.Y.S.2d 843 [1997] ).   Petitioner's remaining contentions have been reviewed and found to be without merit.

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

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