IN RE: Clyde DOGGETT

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

IN RE: Clyde DOGGETT, Petitioner, v. Glenn GOORD, as Commissioner of the New York State Department of Correctional Services, et al., Respondents.

Decided: July 23, 1998

Before CARDONA, P.J., and MIKOLL, WHITE, PETERS and SPAIN, JJ. Clyde Doggett, Comstock, in person. Dennis C. Vacco, Attorney General (Nancy A. Spiegel, of counsel), Albany, for respondents.

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 a prison disciplinary rule.

 Following a tier II disciplinary hearing, petitioner was found guilty of violating a prison disciplinary rule prohibiting inmates from refusing program assignments.   In connection therewith, a $5 mandatory disciplinary surcharge was imposed upon petitioner.   Inasmuch as it has been held that the assessment of a mandatory penalty surcharge does not violate an inmate's due process rights (see, Matter of Allah v. Coughlin, 190 A.D.2d 233, 236, 599 N.Y.S.2d 651, lvs. denied 82 N.Y.2d 659, 660, 605 N.Y.S.2d 5, 6, 625 N.E.2d 590, 591;  see also, Matter of Faison v. Stinson, 221 A.D.2d 746, 747, 633 N.Y.S.2d 635), we reject petitioner's claim that the imposition of the surcharge is unconstitutional.   Correction Law §§ 112 and 137 vest respondent Commissioner of Correctional Services with discretion to impose such a surcharge (see, Matter of Allah v. Coughlin, supra, at 236, 599 N.Y.S.2d 651).

 In addition, insofar as the record discloses that the Hearing Officer was a Correction Lieutenant, we find no merit to petitioner's claim that an inappropriate official presided over the disciplinary hearing (see, 7 NYCRR 253.1[a] ).   Lastly, we note that the misbehavior report, together with the testimony adduced at the hearing, provide substantial evidence supporting the determination of guilt (see, Matter of Kelly v. Goord, 251 A.D.2d 803, 674 N.Y.S.2d 470).   We have considered petitioner's remaining contentions and find them to be unavailing.

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

MEMORANDUM DECISION.

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