Sabino v. Hulihan
| Decision Date | 26 April 2013 |
| Citation | 2013 N.Y. Slip Op. 02923,105 A.D.3d 1426,963 N.Y.S.2d 897 |
| Parties | In the Matter of Saul SABINO, Petitioner, v. William F. HULIHAN, Superintendent, Mid–State Correctional Facility, Respondent. Saul Sabino, Petitioner Pro Se. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HEREProceeding pursuant to CPLR article 78 () to review a determination of respondent. The determination found after a Tier II hearing that petitioner had violated various inmate rules.
*898Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of Counsel), for Respondent.
Petitioner seeks a review of the determination, following a Tier II hearing, that he violated inmate rules 113.22 () and 122.10 (270.2[B][23][i] [] ). Contrary to petitioner's contention, the misbehavior report and the testimony of the author of that report constitute substantial evidence to support the charges ( see Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477). Petitioner's contention that he was not smoking at the alleged time and place raised an issue of credibility for resolution by the Hearing Officer ( see id.). The record does not support petitioner's contention that the Hearing Officer was biased against him ( see Matter of Colon v. Fischer, 83 A.D.3d 1500, 1501–1502, 921 N.Y.S.2d 441). Petitioner failed to exhaust his administrative remedies with respect to his remaining contentions by failing to raise them on his administrative appeal, and this Court has no discretionary power to reach those contentions ( see id. at 1502, 921 N.Y.S.2d 441).
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.
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