Costello v. Smith

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 the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

After petitioner was observed by a female correction officer sitting in a telephone booth across from her desk not talking on the telephone, but staring at her with his hand inside his pants, he was found guilty following a tier III disciplinary hearing of the charge of harassment. The determination was affirmed on administrative appeal, but the penalty was modified. This CPLR article 78 proceeding ensued.

The detailed misbehavior report, which related that petitioner stared at a female correction officer while making crude gestures, constitutes substantial evidence supporting the determination of guilt (see Matter of Applewhite v Goord, 22 AD3d *567985, 986 [2005]; Matter of Russell v Selsky, 22 AD3d 998, 999 [2005]). Contrary to petitioner’s claim, the transcript of the hearing does not disclose that the hearing officer was biased or that the determination flowed from any such bias (see Matter of Dagnone v Goord, 297 AD2d 869 [2002], lv denied 99 NY2d 503 [2002]). Likewise, there is no indication that the transcript of the hearing was deliberately altered or that significant portions are missing such as to preclude meaningful review (see Matter of Carbuccia v Goord, 298 AD2d 801, 802 [2002]).

Cardona, P.J., Crew III, Mugglin, Rose and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.