| Matter of Johnson v Annucci |
| 2016 NY Slip Op 05611 [141 AD3d 996] |
| July 21, 2016 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| In the Matter of Melvin Johnson, Petitioner, v Anthony J. Annucci, as Acting Commissioner of Corrections and Community Supervision, Respondent. |
Melvin Johnson, Wende Road, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
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 finding petitioner guilty of violating a prison disciplinary rule.
Petitioner was charged in a misbehavior report with using a controlled substance after a sample of his urine twice tested positive for the presence of buprenorphine. He was found guilty of the charge following a tier III disciplinary hearing, and the determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.[FN*]
We confirm. Upon reviewing the record, we find no merit to petitioner's claim that he was denied a fair hearing. Significantly, there is no indication that the Hearing Officer engaged [*2]in conduct suggestive of bias or that the determination flowed from any alleged bias (see Matter of Williams v Prack, 130 AD3d 1123, 1124 [2015]; Matter of Paddyfote v Fischer, 118 AD3d 1240, 1241 [2014]). Furthermore, petitioner's challenge to the tier II designation assigned to the matter has not been preserved for our review due to his failure to raise it at the hearing (see Matter of Joseph v Prack, 133 AD3d 1014, 1015 [2015]; Matter of Baez v Bellnier, 131 AD3d 771 [2015]).
Lahtinen, J.P., Garry, Rose, Lynch and Mulvey, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.