Rivera v. Goord

Mar 10, 2005
Versions:16 A.D.3d 788
790 N.Y.S.2d 767
2005 N.Y. App. Div. LEXIS 2395

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

Petitioner, an inmate, attempted to remove various food items from the feed up area when he was stopped by a correction officer who confiscated most of the items. In response, petitioner became loud and disruptive, ignored the correction officer‘s directives to cease such conduct, threw one of the food items against a wall and ran into the mess hall. As a result, he was charged in a misbehavior report with engaging in violent conduct, interfering with an employee, leaving an assigned area, smuggling, stealing state property and refusing a direct order. He was found guilty of all charges following a tier III disciplinary hearing. The determination was affirmed on administrative appeal, and this CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of its author and another correction officer present in the mess hall, provide substantial evidence supporting the determination of guilt (see Matter of May v Selsky, 291 AD2d 591, 592 [2002]; Matter of Dawes v Selsky, 280 AD2d 816, 816 [2001], lv denied 96 NY2d 712 [2001]). Moreover, petitioner was not improperly denied the right to call witnesses as he failed to sufficiently identify the civilian he wished to have testify (see Matter of Sims v Goord, 274 AD2d 701, 701 [2000]). Petitioner‘s remaining contentions, to the extent they are preserved for our review, are lacking in merit.

Cardona, P.J., Mercure, Crew III, Peters and Spain, JJ., concur.

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