Maldonado v. Selsky

Jan 21, 1999
Versions:257 A.D.2d 876
685 N.Y.S.2d 125
1999 N.Y. App. Div. LEXIS 512

—Appeal from a judgment of the Supreme Court (Donohue, J.), entered June 11, 1998 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.

Following a physical altercation with another inmate, petitioner was charged with fighting and possession of a weapon in violation of certain prison disciplinary rules. Petitioner pleaded guilty to fighting and, following a tier III disciplinary hearing, was found guilty of both charges. On administrative appeal, the weapon charge was dismissed. Petitioner commenced this CPLR article 78 proceeding contending that he was denied the right to receive and present relevant documentary evidence in his defense because he was denied a copy of the other inmate’s misbehavior report without written reason. Supreme Court dismissed the petition, prompting this appeal. Even if it was error for Supreme Court to review the other inmate’s misbehavior report (see, Matter of Hakeem v Davis, 233 AD2d 805, 806; Matter of Raqiyb v Coughlin, 214 AD2d 788, 789), we nevertheless affirm. Any error in the Hearing Officer’s denial of petitioner’s request for the misbehavior report of the other inmate involved in the altercation is harmless (see, Matter of Maldonado v Miller, 254 AD2d 660), particularly where, as here, petitioner pleaded guilty to fighting. In any event, petitioner’s claim of justification presented a credibility issue for resolution by the Hearing Officer (see, id.).

Mikoll, J. P., Yesawich Jr., Peters, Carpinello and Graffeo, JJ., concur. Ordered that the judgment is affirmed, without costs.