Dawes v. Leonardo

Appellate Division of the Supreme Court of New York

Dawes v. Leonardo

167 A.D.2d 585, 563 N.Y.S.2d 217, 1990 N.Y. App. Div. LEXIS 13011

Appellate Division of the Supreme Court of the State of New York·Decided November 1, 1990·Published·Cited by 1 cases

Opinion

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

Petitioner was given two opportunities to select an employee assistant and on both occasions refused to sign the form requesting such assistance. Thus, his decision to proceed without assistance was a circumstance of his own creation and did not amount to a deprivation of due process (see, Matter of Peart v Kelly, 134 AD2d 843, lv denied, 71 NY2d 801). Petitioner also failed to properly preserve for judicial review the question of whether the Hearing Officer was partial (see, Matter of Samuels v Kelly, 143 AD2d 506, lv denied 73 NY2d 707). In any event, a review of the record reveals no basis for this claim (see, Matter of Grant v Senkowski, 146 AD2d 948). Furthermore, the testimony of the correction officer and the misbehavior report that he filed provide substantial evidence to support the determination of guilt (see, Matter of Bernacet v Coughlin, 145 AD2d 802, lv denied 74 NY2d 603).

Determination confirmed, and petition dismissed, without costs. Mahoney, P. J., Casey, Yesawich, Jr., Levine and Harvey, JJ., concur.

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

Petitioner was given two opportunities to select an employee assistant and on both occasions refused to sign the form requesting such assistance. Thus, his decision to proceed without assistance was a circumstance of his own creation and did not amount to a deprivation of due process (see, Matter of Peart v Kelly, 134 AD2d 843, lv denied, 71 NY2d 801). Petitioner also failed to properly preserve for judicial review the question of whether the Hearing Officer was partial (see, Matter of Samuels v Kelly, 143 AD2d 506, lv denied 73 NY2d 707). In any event, a review of the record reveals no basis for this claim (see, Matter of Grant v Senkowski, 146 AD2d 948). Furthermore, the testimony of the correction officer and the misbehavior report that he filed provide substantial evidence to support the determination of guilt (see, Matter of Bernacet v Coughlin, 145 AD2d 802, lv denied 74 NY2d 603).

Determination confirmed, and petition dismissed, without costs. Mahoney, P. J., Casey, Yesawich, Jr., Levine and Harvey, JJ., concur.

Dawes v. Leonardo, 167 A.D.2d 585, 563 N.Y.S.2d 217, 1990 N.Y. App. Div. LEXIS 13011 (N.Y. Ct. App. 1990).

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Opinion

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