| Matter of Encarnacion v Goord |
| 2007 NY Slip Op 01918 [38 AD3d 1023] |
| March 8, 2007 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| In the Matter of Bernabe Encarnacion, Petitioner, v Glenn S. Goord, as Commissioner of Correctional Services, et al., Respondents. |
—[*1]
Andrew M. Cuomo, 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 Chemung County) to review a determination of respondent Superintendent of Southport Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with making false statements and refusing a direct order. Following a tier II disciplinary hearing, he was found guilty of both charges. After an administrative appeal, the determination was affirmed. Petitioner commenced this CPLR article 78 proceeding challenging the determination.
The misbehavior report, together with the testimony of the nurse who investigated the matter, provide substantial evidence supporting the determination of guilt (see Matter of Price v Goord, 29 AD3d 1203, 1204 [2006]; Matter of Vizcaino v Selsky, 26 AD3d 574 [2006], lv denied 7 NY3d 708 [2006]). Petitioner's procedural objections are unpersuasive. Petitioner was not improperly denied a Spanish-speaking assistant as his records indicate that he speaks English (see 7 NYCRR 251-4.1 [a] [1]; see also Matter of Encarnacion v Goord, 34 AD3d 1175 [2006]). Furthermore, inasmuch as petitioner's noninmate witness did not return the Hearing Officer's [*2]telephone call, petitioner was not deprived of his right to call witnesses (see Matter of Williams v Goord, 242 AD2d 842 [1997]). The record demonstrates that the hearing was conducted in a fair and impartial manner and the determination did not flow from any alleged bias on the part of the Hearing Officer (see Matter of Cayenne v Goord, 16 AD3d 782, 783-784 [2005]; Matter of Sanchez v Selsky, 8 AD3d 846, 846 [2004]). Petitioner's remaining contentions, to the extent preserved, have been reviewed and determined to be without merit.
Cardona, P.J., Mercure, Crew III, Peters and Carpinello, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.