Bailey v. Walsh

Appellate Division of the Supreme Court of New York

Bailey v. Walsh

31 A.D.3d 1088, 819 N.Y.S.2d 348

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

DecidedJuly 27, 2006

StatusPublished

Cited by3 cases

This text of 31 A.D.3d 1088 (Bailey v. Walsh) 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

Bailey v. Walsh, 31 A.D.3d 1088, 819 N.Y.S.2d 348 (N.Y. Ct. App. 2006).

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Opinion

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Sullivan County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Following a tier II hearing, petitioner, a prison inmate, was found guilty of refusing a direct order, making false statements, making threats and misusing property in violation of prison [1089]*1089disciplinary rules. The charges stemmed from an incident during which petitioner, a clerk in the facility’s law library, refused to comply with a correction officer’s directive that he print and delete his personal legal work from the law library computer. Upon administrative review, respondent upheld the determination, prompting petitioner to commence this proceeding.

We confirm. The misbehavior report, together with the testimony of the authoring correction officer and an inmate witness who was present during the incident, provide substantial evidence in support of the determination (see Matter of Modlenaar v Goord, 21 AD3d 1190, 1190-1191 [2005]; Matter of Smith v Portuondo, 309 AD2d 1028, 1029 [2003]). To the extent that petitioner argues that the charges were brought against him in retaliation for his filing of grievances, the record contains no support for this proposition and, in any event, the Hearing Officer was free to credit the hearing testimony which supported the validity of the charges (see Matter of Brown v Goord, 17 AD3d 952, 952 [2005]). Contrary to petitioner’s assertions, the misbehavior report adequately apprised him of the charges, the date and time of the incident, and provided a sufficient description of the incident to afford him the ability to prepare a defense (see Matter of Kalwasinski v Goord, 25 AD3d 1050, 1050-1051 [2006]; Matter of Smith v Portuondo, supra at 1028). We have considered petitioner’s remaining contentions and find them to be also without merit.

Spain, J.P., Mugglin, Rose, Lahtinen and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Sullivan County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Following a tier II hearing, petitioner, a prison inmate, was found guilty of refusing a direct order, making false statements, making threats and misusing property in violation of prison [1089]*1089disciplinary rules. The charges stemmed from an incident during which petitioner, a clerk in the facility’s law library, refused to comply with a correction officer’s directive that he print and delete his personal legal work from the law library computer. Upon administrative review, respondent upheld the determination, prompting petitioner to commence this proceeding.

We confirm. The misbehavior report, together with the testimony of the authoring correction officer and an inmate witness who was present during the incident, provide substantial evidence in support of the determination (see Matter of Modlenaar v Goord, 21 AD3d 1190, 1190-1191 [2005]; Matter of Smith v Portuondo, 309 AD2d 1028, 1029 [2003]). To the extent that petitioner argues that the charges were brought against him in retaliation for his filing of grievances, the record contains no support for this proposition and, in any event, the Hearing Officer was free to credit the hearing testimony which supported the validity of the charges (see Matter of Brown v Goord, 17 AD3d 952, 952 [2005]). Contrary to petitioner’s assertions, the misbehavior report adequately apprised him of the charges, the date and time of the incident, and provided a sufficient description of the incident to afford him the ability to prepare a defense (see Matter of Kalwasinski v Goord, 25 AD3d 1050, 1050-1051 [2006]; Matter of Smith v Portuondo, supra at 1028). We have considered petitioner’s remaining contentions and find them to be also without merit.

Spain, J.P., Mugglin, Rose, Lahtinen and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Bluebook (online)

31 A.D.3d 1088, 819 N.Y.S.2d 348, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bailey-v-walsh-nyappdiv-2006.

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