Dolan v. Goord

Oct 28, 2004
Versions:11 A.D.3d 849
783 N.Y.S.2d 315
2004 N.Y. App. Div. LEXIS 12607

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 Superintendent of Clinton Correctional Facility which found petitioner guilty of violating a prison disciplinary rule.

Petitioner challenges a determination finding him guilty of violating the prison disciplinary rule that prohibits stealing. The detailed misbehavior report written by a correction officer who witnessed petitioner stealing cookies in the mess hall is sufficient, by itself, to constitute substantial evidence supporting the determination of guilt (see Matter of Filsaime v Sabourin, 288 AD2d 516 [2001]; Matter of Harrell v O’Keefe, 241 AD2d 616 [1997]). Petitioner’s denial of the charge and explanation as to why he placed the cookies in the refrigerator presented a credibility issue for the Hearing Officer to resolve (see Matter of Taylor v Coughlin, 190 AD2d 900, 901 [1993], lv denied 82 NY2d 651 [1993]). Petitioner’s remaining contentions challenging the time the incident occurred and lack of tangible evidence have been waived inasmuch as he failed to raise them at the hearing when they could have been addressed (see Matter of Torres v Selsky, 8 AD3d 775 [2004]; Matter of Spirles v Goord, 308 AD2d 610 [2003]).

Spain, J.P., Mugglin, Rose, Lahtinen and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.