Govan v. Goord

Oct 20, 2005
Versions:22 A.D.3d 928
802 N.Y.S.2d 523

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 Ogdensburg Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner commenced this CPLR article 78 proceeding challenging a determination finding him guilty of creating a disturbance, verbal harassment and a movement violation. The misbehavior report and testimony at the hearing relate that petitioner was told to return to his housing unit because he was too late for Ramadan call out. Within minutes, petitioner was seen leaving on the recreation call out with his bowl for Ramadan in his hand. When he was again told to return to his housing unit he cursed at the correction officer in a loud voice causing inmates in the area to stop. We are unpersuaded by petitioner‘s contention that he was not properly served with the misbehavior report inasmuch as the record establishes that he received it at least 24 hours prior to the commencement of the disciplinary hearing (see 7 NYCRR 253.6 [a]). Moreover, petitioner has demonstrated no prejudice in preparing a defense as a result of any alleged defect in the manner in which he received the misbehavior report (see generally Matter of Reynolds v Goord, 275 AD2d 854 [2000]; Matter of Maya v Goord, 272 AD2d 724, 725 [2000], lv denied 96 NY2d 704 [2001]).

Turning to the merits, despite the absence of a log book entry regarding the time that the Ramadan call out ended, the misbehavior report and testimony at the hearing provide substantial evidence to support the determination (see Matter of Foster v Coughlin, 76 NY2d 964, 966 [1990]; Matter of Patterson v Selsky, 3 AD3d 814 [2004]). Finally, even if preserved for our review (see Matter of Mahon v Goord, 20 AD3d 837, 838 [2005]), there is no indication that the determination resulted from anything but the substantial evidence of petitioner‘s guilt (see Matter of Alba v Goord, 6 AD3d 847 [2004]).

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