Opinion
July 11, 1991
Appeal from the Supreme Court, Washington County.
Petitioner was found to have violated prison rule 104.10 (rioting) and received a disciplinary penalty of one year in the special housing unit with a loss of privileges and a recommended one-year loss of good time. The prison disturbance occurred on May 26, 1990 at Attica Correctional Facility in Wyoming County. A misbehavior report was written on May 30, 1990 by a correction officer who personally observed petitioner, with whom he was familiar, participate in the disturbance. The disciplinary tier III hearing was adjourned due to the transfer of petitioner to a different correctional facility and finally commenced on June 6, 1990. At that hearing, the correction officer's testimony as to his observations was received by use of a telephone.
The penalty initially imposed of two years' confinement in the special housing unit and two years' loss of good time was modified downward on administrative appeal.
Misbehavior reports charging petitioner with violations of prison disciplinary rules were also written by two other correction officers. One was dismissed due to a procedural error and the second was subsequently reversed on administrative appeal.
Petitioner contends that the determination is not supported by substantial evidence. Contrary to petitioner's suggestion, the testimony of the correction officer together with the misbehavior report fully supports the determination. Substantial evidence is such proof as a reasonable mind may accept as adequate to support the conclusion or ultimate fact (see, Matter of Berenhaus v Ward, 70 N.Y.2d 436, 443; People ex rel. Vega v Smith, 66 N.Y.2d 130, 139; 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 N.Y.2d 176, 180). Resolution of conflicts in testimony and issues of credibility are within the province of the Hearing Officer (see, Matter of Berenhaus v Ward, supra, at 443-444).
We also find petitioner's complaint of delay in the commencement and completion of the hearing to be without merit. 7 NYCRR 251-5.1 requires that a tier III hearing be commenced within seven days of the confinement and be completed within 14 days of the writing of the misbehavior report, absent authorization for any delay. The misbehavior report here was dated May 30, 1990 and the hearing was completed on June 11, 1990, within the 14-day time period. While there was a delay in the commencement of the hearing, such delay was authorized because of petitioner's transfer from one facility to another on May 29, 1990 (see, Matter of Taylor v Coughlin, 135 A.D.2d 992, 993; see also, Matter of Vogelsang v Coombe, 66 N.Y.2d 835, affg 105 A.D.2d 913). The other adjournments occurred in order to complete telephone contact with the witnesses desired by petitioner and to await the videotape of the prison yard disturbance, and they were authorized as required by regulation ( 7 NYCRR 251-5.1).
Finally, petitioner contends that he was denied an impartial hearing because the version of the events testified to by him and his witness was not accepted. Again, the resolution of credibility and conflicting evidence is the responsibility of the Hearing Officer (Matter of Berenhaus v Ward, supra) and is not indicative of prejudice or bias. The burden of proving prejudice or bias and that the outcome of the hearing flowed from the alleged bias was upon petitioner (see, Matter of Cogle v Coughlin, 166 A.D.2d 803). We find no support in the record for petitioner's assertions (see, Matter of Gayle v LeFevre, 139 A.D.2d 866; Matter of Aliym v Miles, 138 A.D.2d 833).
Mahoney, P.J., Casey, Levine and Mercure, JJ., concur. Adjudged that the determination is confirmed, and petition dismissed, without costs.