Opinion
September 23, 1993
Appeal from the Supreme Court, Albany County.
A search of petitioner's cell at Great Meadow Correctional Facility in Washington County resulted in the discovery of a nail clipper with a sharpened handle. The correction officer who discovered the clipper subsequently filed a misbehavior report charging petitioner with possession of a weapon in violation of prison disciplinary rules. At the Superintendent's hearing, the misbehavior report was read into evidence. Petitioner declined to call witnesses and did not request the production of any physical evidence. The Hearing Officer found petitioner guilty of the violation, and this finding was affirmed on administrative review. Petitioner then initiated this proceeding alleging that the determination was not supported by substantial evidence and that the Hearing Officer was biased.
We confirm. The misbehavior report, authored by the correction officer who discovered the nail clipper, as well as the photocopy of the nail clipper and petitioner's admission that the nail clipper was his, constitutes substantial evidence of the charge (see, Matter of Mendez v Jones, 176 A.D.2d 423; Matter of Siders v LeFevre, 145 A.D.2d 874). Further, there is no evidence in the record supporting petitioner's contention that the Hearing Officer was biased or that the outcome of the hearing flowed from any such alleged bias (see, Matter of Gonzalez v Mann, 186 A.D.2d 876; Matter of Nieves v Coughlin, 157 A.D.2d 943). The fact that the Hearing Officer failed to physically examine the nail clipper does not require a different result. Petitioner did not request the production of the nail clipper at the hearing and, given the misbehavior report and other evidence of petitioner's guilt, the Hearing Officer had no obligation to present petitioner's case for him by physically evaluating the nail clipper (see, Matter of Cruz v Amico, 186 A.D.2d 841; Matter of Rivera v Coughlin, 179 A.D.2d 949; Matter of Smith v Coughlin, 111 A.D.2d 503).
Mikoll, J.P., Yesawich Jr., Crew III and Casey, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.