Beery v. Goord

42 A.D.3d 614, 837 N.Y.S.2d 880

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 5, 2007
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court (Lamont, J.), entered October 12, 2006 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner became disruptive in his cell on December 30, 2005 and was charged in one misbehavior report with creating a disturbance and harassment, and in a second with assaulting staff, engaging in violent conduct, refusing a direct order and interfering with an employee. Following a tier III disciplinary hearing covering both misbehavior reports, he was found guilty of all charges. After the determination was affirmed on administrative appeal, petitioner commenced this CPLR article 78 proceeding. Supreme Court ultimately dismissed the petition and this appeal ensued.

Initially, inasmuch as the verified petition does not raise a question of substantial evidence, we reject petitioner’s assertion that the proceeding should have been transferred to this Court in the first instance. Supreme Court properly considered and disposed of petitioner’s procedural claims. Likewise, a review of the hearing transcript does not substantiate petitioner’s claim that gaps within it preclude meaningful judicial review (see Matter of Ford v Smith, 23 AD3d 829, 829 [2005], lv denied 6 NY3d 708 [2006]; Matter of Carbuccia v Goord, 298 AD2d 801, 802 [2002]). Accordingly, Supreme Court properly dismissed the petition.

Spain, J.P, Mugglin, Rose, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.