Moxley v. Selsky

Nov 15, 2007
Versions:45 A.D.3d 1084
846 N.Y.S.2d 429

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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, an inmate, resisted a frisk by a correction officer and then continued to fight back as other correction officers attempted to subdue him. As a result, he was charged in a misbehavior report with refusing to submit to a frisk, interfering with an employee and assaulting the staff. Following a tier III disciplinary hearing, he was found guilty of refusing to submit to a frisk and interfering with an employee but not guilty of assaulting the staff. The determination was affirmed upon administrative review and this CPLR article 78 proceeding ensued.

We confirm. The misbehavior report and related documentation comprise substantial evidence to support the determination of guilt (see Matter of Britt v Goord, 39 AD3d 994, 994 [2007]; Matter of Laureano v Goord, 36 AD3d 1175, 1176 [2007]). Petitioner has not preserved his claim that the Hearing Officer should have interviewed those inmates who refused to testify. In any event, the refusal forms and testimony of the correction officer who obtained them support the conclusion that there was no deprivation of his right to call witnesses (see Matter of McIver v Goord, 37 AD3d 943, 945 [2007]; Matter of Hill v Selsky, 19 AD3d 64, 66 [2005]). To the extent preserved, we have examined petitioner‘s remaining contentions and find them to be unavailing.

Cardona, P.J., Spain, Mugglin, Rose and Kane, JJ., concur.

Adjudged that the determination is confirmed, without costs, and petition dismissed.