Boley v. Selsky

50 A.D.3d 1411, 857 N.Y.S.2d 287

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 24, 2008
• Status: Published

Opinion

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

While petitioner was being escorted to the restroom, he suddenly moved aggressively toward a correction officer and attempted to “head-butt” him. Petitioner then continued to struggle with correction officers, despite their repeated orders to stop resisting, until the officers ultimately took him to the floor and applied leg irons. Petitioner was thereafter charged in a misbehavior report with attempted assault, engaging in violent conduct and refusing a direct order. Following a tier III disciplinary hearing, petitioner was found guilty of all three charges. That determination was affirmed upon administrative appeal and this CPLR article 78 proceeding ensued.

We confirm. Contrary to petitioner’s assertion, the misbehavior report, together with the related documentation and photographs, along with the extensive hearing testimony, provide substantial evidence to support the determination of guilt (see Matter of Shankle v Goord, 45 AD3d 1084, 1085 [2007], lv denied 10 NY3d 701 [2008]). Regarding petitioner’s claim of inadequate employee assistance, it is neither substantiated in the record nor is there any indication that petitioner suffered any prejudice (see Matter of White v Selsky, 3 AD3d 762, 763 [2004]). To the extent not specifically addressed herein, petitioner’s remaining contentions have been examined and found to be without merit.

Mercure, J.P, Peters, Carpinello, Kane and Stein, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.