Alvarez v. Goord

Appellate Division of the Supreme Court of New York

Alvarez v. Goord

17 A.D.3d 945, 793 N.Y.S.2d 630, 2005 N.Y. App. Div. LEXIS 4489

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 28, 2005

StatusPublished

Cited by8 cases

This text of 17 A.D.3d 945 (Alvarez v. Goord) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Alvarez v. Goord, 17 A.D.3d 945, 793 N.Y.S.2d 630, 2005 N.Y. App. Div. LEXIS 4489 (N.Y. Ct. App. 2005).

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Opinion

Kane, J.

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

Petitioner was charged with violating prison disciplinary rules [946]*946prohibiting possession of unauthorized property, possession of authorized property in an unauthorized area, smuggling and unauthorized exchange after an envelope containing $45.14 in stamps and reflecting the return address of another inmate was recovered from petitioner during a random pat frisk. Following a tier III disciplinary hearing, petitioner was found guilty of all charges. After the determination was affirmed on administrative appeal, petitioner commenced this proceeding.

We confirm. The misbehavior report and testimony of the authoring correction officer provide substantial evidence to support the determination of guilt (see Matter of Karlin v Goord, 13 AD3d 697, 698 [2004]; Matter of Knight v McGinnis, 10 AD3d 754, 755 [2004]; Matter of Selby v Coombe, 249 AD2d 635, 636 [1998]). Petitioner had no standing to challenge the manner in which the envelope was opened because it was not his mail; it contained the return address of another person and he initially informed the correction officer that it did not belong to him (see People v Miller, 228 AD2d 979, 980 [1996], lv denied 88 NY2d 990 [1996]).

With respect to petitioner’s procedural claim, although the employee assistant failed to interview the correction officer as requested by petitioner, the Hearing Officer called the officer as a witness and petitioner declined the opportunity to examine him. Accordingly, petitioner failed to demonstrate any prejudice flowing from the assistant’s alleged inadequacy (see Matter of Tusa v Goord, 287 AD2d 907, 908 [2001], appeal dismissed 98 NY2d 646 [2002]). Petitioner’s remaining arguments have been reviewed and found lacking in merit.

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

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Kane, J.

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

Petitioner was charged with violating prison disciplinary rules [946]*946prohibiting possession of unauthorized property, possession of authorized property in an unauthorized area, smuggling and unauthorized exchange after an envelope containing $45.14 in stamps and reflecting the return address of another inmate was recovered from petitioner during a random pat frisk. Following a tier III disciplinary hearing, petitioner was found guilty of all charges. After the determination was affirmed on administrative appeal, petitioner commenced this proceeding.

We confirm. The misbehavior report and testimony of the authoring correction officer provide substantial evidence to support the determination of guilt (see Matter of Karlin v Goord, 13 AD3d 697, 698 [2004]; Matter of Knight v McGinnis, 10 AD3d 754, 755 [2004]; Matter of Selby v Coombe, 249 AD2d 635, 636 [1998]). Petitioner had no standing to challenge the manner in which the envelope was opened because it was not his mail; it contained the return address of another person and he initially informed the correction officer that it did not belong to him (see People v Miller, 228 AD2d 979, 980 [1996], lv denied 88 NY2d 990 [1996]).

With respect to petitioner’s procedural claim, although the employee assistant failed to interview the correction officer as requested by petitioner, the Hearing Officer called the officer as a witness and petitioner declined the opportunity to examine him. Accordingly, petitioner failed to demonstrate any prejudice flowing from the assistant’s alleged inadequacy (see Matter of Tusa v Goord, 287 AD2d 907, 908 [2001], appeal dismissed 98 NY2d 646 [2002]). Petitioner’s remaining arguments have been reviewed and found lacking in merit.

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

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Bluebook (online)

17 A.D.3d 945, 793 N.Y.S.2d 630, 2005 N.Y. App. Div. LEXIS 4489, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alvarez-v-goord-nyappdiv-2005.

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