Bogle v. Coughlin

162 A.D.2d 789, 557 N.Y.S.2d 699, 1990 N.Y. App. Div. LEXIS 7258

Opinion

Casey, J.

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

The misbehavior report involved in this case arising out of Shawangunk Correctional Facility in Ulster County charges petitioner with violating a prison rule which prohibits inmates from altering, forging or counterfeiting any facility documents. According to the report, authored by Correction Sergeant Falkena, petitioner gave Correction Officer Potter a disbursement form "signed in the name of Inmate Bonner”. Falkena compared the signature on the form to other documents in Bonner’s file and concluded that the signature on the disbursement form was not Bonner’s.

Assuming that Falkena’s opinion as to the authenticity of the signature on the disbursement form was sufficient to establish that the disbursement form was forged, there is absolutely no evidence that petitioner was the one who forged the document. Falkena conceded that he could not prove petitioner was the forger, and he also conceded that no effort was made to compare the signature on the document form with any samples of petitioner’s handwriting in his file. Since petitioner was charged with actually forging the instrument, not mere possession of a forged instrument, the determination of guilt is totally lacking in evidentiary support and must be annulled.

Determination annulled, without costs, petition granted and respondent is directed to expunge all references to the matter from petitioner’s records. Mahoney, P. J., Casey, Mikoll, Yesawich, Jr., and Levine, JJ., concur.