Opinion
2012-02-2
In the Matter of Israel VEGA, Petitioner, v. NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES et al., Respondents.
Israel Vega, Auburn, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondents.
Israel Vega, Auburn, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondents.
Before: MERCURE, Acting P.J., PETERS, ROSE, KAVANAGH and GARRY, JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.
As the result of an investigation, petitioner was charged in a misbehavior report with assaulting another inmate. He was found guilty of the charge following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
Petitioner contends that he was denied a fair and impartial hearing, primarily because the Hearing Officer was the watch commander and was allegedly involved in the investigation of the incidents leading to the misbehavior report. We find this argument to be without merit. Although the Hearing Officer conceded that he acted as the watch commander and knew of the incidents, he stated that he did not witness the events and did not participate in the investigation. Given that the Hearing Officer did not “actually witness[ ] the incident[s],” was not “directly involved in the incident[s],” and did not “investigate[ ] the incident[s],” he was not disqualified from presiding over the hearing under the pertinent regulations ( 7 NYCRR 254.1; see Matter of Parker v. Fischer, 70 A.D.3d 1086, 1087, 897 N.Y.S.2d 525 [2010] ). Furthermore, upon reviewing the hearing transcript, we do not find that the Hearing Officer was biased or that the determination flowed from any alleged bias ( see Matter of Truman v. Fischer, 75 A.D.3d 1019, 1020, 907 N.Y.S.2d 343 [2010]; Matter of Arnold v. Fischer, 60 A.D.3d 1177, 1177, 875 N.Y.S.2d 318 [2009] ). Petitioner's claims that he was improperly denied certain witnesses as well as documentation concerning the severity of the inmate's injuries are unavailing inasmuch as they were redundant or irrelevant to the assault charge ( see Matter of Caraway v. Herbert, 285 A.D.2d 778, 778–779, 726 N.Y.S.2d 825 [2001]; Matter of Mabry v. Coughlin, 196 A.D.2d 931, 601 N.Y.S.2d 975 [1993], lv. denied 82 N.Y.2d 664, 610 N.Y.S.2d 152, 632 N.E.2d 462 [1994] ).
The petition arguably raised a question of substantial evidence precipitating the transfer of the proceeding to this Court, but petitioner has abandoned that issue by not addressing it in his brief ( see Matter of Grant v. Prack, 86 A.D.3d 885, 886 n., 927 N.Y.S.2d 474 [2011] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.