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Matter of Donato v. Duncan

Appellate Division of the Supreme Court of New York, Third Department
May 18, 2000
272 A.D.2d 768 (N.Y. App. Div. 2000)

Opinion

May 18, 2000.

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

David Donato, Malone, petitioner in person.

Eliot Spitzer, Attorney-General (Marcus J. Mastracco of counsel), Albany, for respondents.

Before: MERCURE, J.P., CREW III, SPAIN, MUGGLIN and ROSE, JJ.


MEMORANDUM AND JUDGMENT

Petitioner, a prison inmate, was found guilty of lewd exposure and being out of place. Contrary to petitioner's contention, the misbehavior report, together with the testimony of the correction officer who authored it after observing petitioner's conduct, as well as petitioner's own testimony, provide substantial evidence of petitioner's guilt (see, Matter of Garnette v. Goord, ___ A.D.2d ___, 703 N.Y.S.2d 759; Matter of McNair v. Goord, 265 A.D.2d 716).

Due to petitioner's failure to assert the issue of Hearing Officer bias at the disciplinary hearing, petitioner has waived the right to raise this issue in the context of this proceeding. Were we to review petitioner's allegation of bias, we would reject it as there is nothing in the record to indicate that the disciplinary hearing was conducted in anything other than a fair and equitable manner (see, Matter of Farrakhan v. Selsky, 239 A.D.2d 685), or that the outcome of this hearing flowed from any bias (see, Matter of McNair v. Goord, supra).

Mercure, J.P., Crew III, Spain, Mugglin and Rose, JJ., concur.

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


Summaries of

Matter of Donato v. Duncan

Appellate Division of the Supreme Court of New York, Third Department
May 18, 2000
272 A.D.2d 768 (N.Y. App. Div. 2000)
Case details for

Matter of Donato v. Duncan

Case Details

Full title:IN THE MATTER OF DAVID DONATO, Petitioner, v. GEORGE DUNCAN, as…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: May 18, 2000

Citations

272 A.D.2d 768 (N.Y. App. Div. 2000)
708 N.Y.S.2d 914

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