Opinion
06-17-2016
In the Matter of Arrello BARNES, Petitioner–Appellant, v. Anthony ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent–Respondent.
Wyoming County–Attica Legal Aid Bureau, Warsaw (Adam W. Koch of Counsel), for Petitioner–Appellant. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of Counsel), for Respondent–Respondent.
Wyoming County–Attica Legal Aid Bureau, Warsaw (Adam W. Koch of Counsel), for Petitioner–Appellant.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of Counsel), for Respondent–Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DeJOSEPH, and CURRAN, JJ.
Opinion
MEMORANDUM:
Petitioner, an inmate in state prison, commenced this proceeding pursuant to CPLR article 78 seeking to annul the determination that he violated inmate rule 105.13 (7 NYCRR 270.2 [B][6][iv] ), which prohibits the possession of gang-related material. The charge was based on letters containing gang-related references that had been sent to petitioner. We reject petitioner's contention that the Hearing Officer was biased against him and thus that he was deprived of his right to an impartial hearing officer. Petitioner was afforded ample opportunity to present his defense, which was that he only recently received the letters in the mail and did not have time to destroy them before they were found in his cell by a correction officer. “[T]he fact that the Hearing Officer rejected petitioner's testimony is not indicative of bias, nor is there anything in the record supporting petitioner's claim that the determination flowed from any alleged bias” (Matter of Bekka v. Annucci, 137 A.D.3d 1446, 1447, 27 N.Y.S.3d 292 ; see Matter of Jay v. Fischer, 118 A.D.3d 1364, 1364, 986 N.Y.S.2d 899, lv. denied 24 N.Y.3d 975, 995 N.Y.S.2d 699, 20 N.E.3d 644 ). We have reviewed petitioner's remaining contentions and conclude that they lack merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.