Opinion
11-10-2016
In the Matter of Leo A. MARINO, Petitioner, v. Steven RACETTE, as Superintendent of Clinton Correctional Facility, Respondent.
Leo A. Marino, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Leo A. Marino, Malone, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), 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 finding petitioner guilty of violating a prison disciplinary rule.
Petitioner was charged in a misbehavior report with disobeying a direct order, being out of place and creating a disturbance after he went to the law library and failed to report to work in the mess hall as scheduled. Following a tier II disciplinary hearing, petitioner was found guilty of being out of place and not guilty of the remaining charges. The determination was affirmed upon administrative appeal, and this CPLR article 78 proceeding ensued.
We confirm. Notwithstanding petitioner's contention to the contrary, the misbehavior report and petitioner's testimony provide substantial evidence to support the determination of guilt (see Matter of A'Gard v. LaValley, 104 A.D.3d 1031, 1031, 960 N.Y.S.2d 665 [2013] ; Matter of Lebron v. Artus, 35 A.D.3d 1108, 1109, 827 N.Y.S.2d 728 [2006], lv. denied 8 N.Y.3d 810, 834 N.Y.S.2d 507, 866 N.E.2d 453 [2007] ). To the extent that petitioner contends that the Hearing Officer predetermined his guilt, the record demonstrates that the determination of guilt was the result of the evidence and did not flow from any alleged bias (see Matter of Harding v. Prack, 118 A.D.3d 1231, 1232, 987 N.Y.S.2d 712 [2014] ; Matter of Pine v. Fischer, 118 A.D.3d 1196, 1198, 988 N.Y.S.2d 283 [2014], lv. denied 24 N.Y.3d 904, 2014 WL 4548523 [2014] ). Petitioner's remaining contentions are not preserved for this Court's review.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
GARRY, J.P., EGAN JR., LYNCH, ROSE and DEVINE, JJ., concur.