IN RE: Miguel ROSA

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

IN RE: Miguel ROSA, Petitioner, v. Philip COOMBE Jr., as Commissioner of the New York State Department of Correctional Services, Respondent.

Decided: April 24, 1997

Before CARDONA, P.J., and CASEY, PETERS, SPAIN and CARPINELLO, JJ. Miguel Rosa, Staten Island, in pro. per. Dennis C. Vacco, Attorney-General (Mara B. Ginsberg, 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.

Pursuant to two misbehavior reports, petitioner, a prison inmate, was found guilty of violating prison disciplinary rules which prohibit smuggling, violating facility correspondence procedures, stealing or misusing State property, unlawful possession of an I.D. card and unauthorized alteration of State property.   The first misbehavior report was issued after prison officials recovered an I.D. card bearing petitioner's photograph and the words “To:  Linda Don't Leave Home Without It Smile” in an envelope with petitioner's return address which had been mailed out of the facility and returned by the U.S. Post Office because the stamp used on the envelope had previously been canceled.   The second misbehavior report was based on a search of petitioner's cube during which two I.D. card covers and identification-type photographs of petitioner were found.   After the determination was affirmed upon administrative appeal, petitioner commenced this CPLR article 78 proceeding.   Finding the claims advanced in this proceeding to be without merit, we confirm.

 Contrary to petitioner's contention, a review of the record reveals that the administrative determination was supported by substantial evidence.   The undisputed fact that petitioner had access to the facility's I.D. office and equipment, combined with the misbehavior reports and the testimony of the correction officers who authored the reports, investigated the matters and discovered three unauthorized I.D. cards and photographs of petitioner, provides an ample basis for a finding of guilt (see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 563 N.Y.S.2d 728, 565 N.E.2d 477).

 We similarly reject petitioner's claim that he was denied a fair and impartial hearing because of the Hearing Officer's involvement in the incident which formed the basis for the first misbehavior report.   Assuming, without deciding, that the Hearing Officer's involvement was more than tangential (cf., Matter of Cowart v. Coughlin, 193 A.D.2d 887, 887-888, 597 N.Y.S.2d 821;  Matter of Blackshear v. Coughlin, 185 A.D.2d 493, 493-494, 586 N.Y.S.2d 34;  Matter of O'Neal v. Coughlin, 162 A.D.2d 826, 827, 558 N.Y.S.2d 644), we nonetheless find no basis to annul the determination since petitioner has not demonstrated that the outcome of the hearing flowed from the alleged bias (see, Matter of Parker v. Coughlin, 211 A.D.2d 929, 621 N.Y.S.2d 954;  Matter of Nieves v. Coughlin, 157 A.D.2d 943, 944, 550 N.Y.S.2d 203).   We have examined petitioner's remaining contentions, including his claim that he was denied access to an investigation report, and find them to be lacking in merit.

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

SPAIN, Justice.


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