Brown v. McClellan

217 A.D.2d 731, 628 N.Y.S.2d 1020, 1995 N.Y. App. Div. LEXIS 7661

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 6, 1995
• 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 four determinations of respondent which found petitioner guilty of violating certain prison disciplinary rules.

After four separate disciplinary hearings, petitioner, a prison inmate, was found guilty of violating various prison disciplinary rules. Insofar as the evidence supporting the determinations following the first, second and fourth hearings consists of misbehavior reports concerning each of the events at issue as well as testimony of correction officers who witnessed these events, we find these determinations to be supported by substantial evidence in the record. Furthermore, we do not find that the Hearing Officer was biased in these proceedings or that petitioner was improperly denied the right to call witnesses. We do find, however, as respondent concedes, that petitioner was improperly denied the right to call a witness at the third hearing. Consequently, the determination made after this hearing must be annulled. We have considered petitioner’s remaining contentions and find them to be without merit.

Mikoll, J. P., Crew III, White, Yesawich Jr. and Peters, JJ., concur. Adjudged that the determinations made after the first, second and fourth hearings are confirmed, without costs, and petition dismissed as to these determinations. Adjudged that the determination made after the third hearing is annulled, without costs and petition granted as to this determination.