Anderson v. Goord

270 A.D.2d 836, 705 N.Y.S.2d 540, 2000 N.Y. App. Div. LEXIS 3392

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 29, 2000
• Status: Published

Opinion

—Determination unanimously modified on the law and as modified confirmed without costs and matter remitted to respondent for further proceedings in accordance with the following Memorandum: The misbehavior reports, together with the testimony of two correction officers, constitute substantial evidence supporting the determination that petitioner violated inmate rule 113.10 (7 NYCRR 270.2 [B] [14] [i] [possession of a weapon]) (see, Matter of Bryant v Coughlin, 77 NY2d 642, 647; People ex rel. Vega v Smith, 66 NY2d 130, 139). Petitioner’s defense of misidentification raised an issue of credibility for the Hearing Officer to resolve (see, Matter of Allen v Goord, 252 AD2d 973; Matter of Lee v Goord, 244 AD2d 969). Respondent concedes that the evidence is insufficient to support the determination that petitioner violated inmate rule .114.10 (7 NYCRR 270.2 [B] [15] [i] [smuggling]). We therefore modify the determination and grant the petition in part by annulling the determination that petitioner violated inmate rule 114.10. Because one penalty was imposed and the record fails to specify any relation between the violations and the penalty, we further modify the determination by vacating the penalty, and we remit the matter to respondent for imposition of an appropriate penalty on the remaining violation (see, Matter of Whitt v Goord, 259 AD2d 1045, 1046). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.) Present — Green, J. P., Hayes, Hurlbutt and Lawton, JJ.