Gonzalez v. West

May 25, 2006
Versions:29 A.D.3d 1245
816 N.Y.S.2d 220

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 which found petitioner guilty of violating a prison disciplinary rule.

While responding to an area where there was a disturbance among a group of inmates, a correction officer observed petitioner throwing closed fist punches at an unidentified inmate. As a result, petitioner was charged in a misbehavior report with fighting and engaging in violent conduct. Following a tier II disciplinary hearing, he was found guilty of the latter charge and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of the correction officer who authored it and witnessed petitioner throwing punches as well as the testimony of another officer present in the area, provide substantial evidence to support the determination of guilt (see Matter of Rivera v Goord, 16 AD3d 788, 788 [2005]). The proof supporting the determination is not undermined by the failure of the misbehavior report to specify the inmate who petitioner struck as petitioner was not found guilty of fighting. Furthermore, petitioner‘s claim that he was improperly denied the right to call an inmate witness is not preserved inasmuch as petitioner did not object to the genuineness of the inmate‘s refusal at the hearing (see Matter of Otero v Goord, 17 AD3d 805, 806 [2005]; Matter of Ryan v Goord, 12 AD3d 799, 800 [2004]) or raise this claim in his administrative appeal (see Matter of Green v Williams, 252 AD2d 974, 975 [1998]).

Cardona, P.J., Mercure, Carpinello, Rose and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.