Taylor v. Selsky

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 certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with violating the prison disciplinary rules which prohibit assault on an inmate, possession of a weapon and refusing to obey a direct order. Petitioner pleaded guilty to the last charge and was found guilty following an administrative hearing of the remaining charges. Subsequently, the finding that petitioner was guilty of possession of a weapon was administratively reversed. Petitioner contends in this proceeding that he was denied the right to a fair and impartial hearing. We disagree.

Although the Hearing Officer remarked on more than one occasion that he did not believe petitioner and thought that he was lying, we do not find that such comments conclusively establish bias (see, Matter of Barnhill v Coombe, 239 AD2d 719, 721). The Hearing Officer was vested with the authority to resolve questions of credibility and to reject petitioner’s testimony (see, Matter of Nelson v Selsky, 239 AD2d 795). Furthermore, petitioner was permitted to testify regarding his version of the events and to present a defense. We conclude that petitioner has failed to establish that the outcome of the hearing flowed from the alleged bias (see, Matter of Barnhill v Coombe, supra). Petitioner’s remaining contentions are found to be without merit or unpreserved for our review.

Mikoll, J. P., Mercure, Casey, Peters and Spain, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.