IN RE: Darryl M. KNICKERBOCKER

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

IN RE: Darryl M. KNICKERBOCKER, Petitioner, v. Glenn GOORD, as Commissioner of the Department of Correctional Services, et al., Respondents.

Decided: October 26, 2000

Before:  MERCURE, J.P., PETERS, CARPINELLO, GRAFFEO and MUGGLIN, JJ. Darryl M. Knickerbocker, Pine City, petitioner in person. Eliot Spitzer, Attorney-General (Nancy A. Spiegel of counsel), Albany, for respondent.

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

Following a tier III disciplinary hearing, petitioner was found guilty of violating the prison disciplinary rules that prohibit inmates from possessing gang-related items and materials that depict or describe the construction of explosive devices.   According to the misbehavior report, the objectionable documents were discovered in a folder in the course of a frisk of petitioner's cell.   The folder included drawings and symbols related to a white supremacist group and directions on how to make a “shrap-wick grenade”.   The determination of guilt was affirmed upon petitioner's administrative appeal prompting the commencement of this CPLR article 78 proceeding.

We confirm.   Contrary to petitioner's contention, we find that the misbehavior report, combined with the testimony of a correction officer trained in identifying unauthorized organization material, provide substantial evidence of petitioner's guilt (see, Matter of Feliciano v. Selsky, 263 A.D.2d 810, 694 N.Y.S.2d 798).   Notably, upon review of the record, we reject petitioner's various claims that the determination must be annulled because the subject items are his “personal artwork” and that his constitutional rights have been violated (see, Matter of Ernest v. Goord, 258 A.D.2d 747, 748, 685 N.Y.S.2d 854, lv. dismissed 93 N.Y.2d 944, 693 N.Y.S.2d 503, 715 N.E.2d 505).

Turning to petitioner's procedural arguments, we find no merit to his contention that he was denied his right to present relevant documentary evidence (see, Matter of Pulecio v. Goord, 274 A.D.2d 786, 711 N.Y.S.2d 922).   Similarly, the Hearing Officer properly denied petitioner's request to call a witness who could not provide information relevant to the subject charges (see, Matter of Cunningham v. Goord, 274 A.D.2d 814, 711 N.Y.S.2d 571).   We also find no evidence to support petitioner's assertion of Hearing Officer bias, and, in any event, petitioner has failed to establish that the outcome of the hearing flowed from the alleged bias (see, Matter of Sims v. Goord, 274 A.D.2d 701, 711 N.Y.S.2d 545).

Petitioner's remaining arguments, including his allegation that he was improperly denied the opportunity to cross-examine a witness, have been examined and found to be unpersuasive.

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

MEMORANDUM DECISION.

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