Nicholas v. Schriver

Spain, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules. Petitioner was found guilty after a tier II hearing of violating the prison disciplinary rules that prohibit inmates from interfering with an employee, disobeying a direct order and failing to comply with a frisk and search order. Petitioner challenges the administrative determination on the grounds that the Hearing Officer was biased and that the determination is not supported by substantial evidence. We confirm. Petitioner’s contentions that the Hearing Officer’s references during the hearing to the appeal process available to petitioner and other comments were indicative of bias and that he was predisposed to finding petitioner guilty are without merit. Moreover, petitioner failed to establish “that the outcome of the hearing flowed from the alleged bias” (Matter of Nieves v Coughlin, 157 AD2d 943, 944; see, Matter of Taylor v Selsky, 242 AD2d 772). To that end, the misbehavior report, together with the testimony of witnesses who were present at the time of the incident and the admissions of petitioner, provide substantial evidence to support petitioner’s guilt (see, Matter of Foster v Coughlin, 76 NY2d 964, 966; Matter of Calligros v Great Meadow Correctional Facility, 246 AD2d 700). We also reject petitioner’s contention that the Hearing Officer was inherently biased because he was a subordinate of the Captain who was one of several witnesses to the incident and who ordered the watch commander to place petitioner in confinement for wrongfully leaving the area where he was be [864] ing frisked. Under the circumstances of this case, we cannot say that the Captain’s role created an inherent conflict of interest for the Hearing Officer (cf., Matter of Nelson v Coughlin, 188 AD2d 1071, appeal dismissed 81 NY2d 834). We have considered petitioner’s remaining contentions and find them to be either unpreserved for review or without merit. Cardona, P. J., Mikoll, Yesawich Jr. and Peters, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.