Calhoun v. Selsky

18 A.D.3d 1083, 795 N.Y.S.2d 406, 2005 N.Y. App. Div. LEXIS 5690

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 26, 2005
• Status: Published

Opinion

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

Petitioner left the correctional facility where he was incarcerated, having received a pass for an overnight visit to his home. When he returned, he was charged in a misbehavior report with absconding, exceeding time limits and violating temporary release rules. At a tier III disciplinary hearing, petitioner testified that a counselor gave him permission to leave the facility overnight in return for a payment of $120. At the conclusion of the hearing, the Hearing Officer found petitioner guilty of absconding and violating temporary release rules. On administrative appeal, the charge of absconding was dismissed and petitioner was found guilty only of violating temporary release rules. This CPLR article 78 proceeding ensued.

We confirm. The record includes a memorandum from the correction officer in charge of keeping track of the inmates indicating that inmates are advised during orientation of the rules governing pass procedures, and that they are eligible only after 30 days of incarceration. Petitioner was not eligible for a pass because he had not been at the facility for 30 days. This, together with the misbehavior report and petitioner’s admission that he paid a counselor for the overnight pass, constitutes substantial evidence supporting the determination of guilt (see Matter of Gonzalez v Goord, 289 AD2d 736 [2001]).

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