| Matter of Vega v New York State Dept. of Correctional Servs. |
| 2012 NY Slip Op 00679 [92 AD3d 991] |
| February 2, 2012 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| In the Matter of Israel Vega, Petitioner, v New York State Department of Correctional Services et al, Respondents. |
—[*1]
Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for
respondents.
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.[FN*] We find this argument to be without merit. [*2]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 AD3d 1086, 1087 [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 AD3d 1019, 1020 [2010]; Matter of Arnold v Fischer, 60 AD3d 1177, 1177 [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 AD2d 778, 778-779 [2001]; Matter of Mabry v Coughlin, 196 AD2d 931 [1993], lv denied 82 NY2d 664 [1994]).
Mercure, A.P.J., Peters, Rose, Kavanagh and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.