Delgado v. Coombe

223 A.D.2d 913, 636 N.Y.S.2d 494, 1996 N.Y. App. Div. LEXIS 384

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 respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, a prison inmate, was observed placing an object under a box in the recreation yard which was later recovered by correction officers and discovered to be a metal shank. He was subsequently found guilty of violating a prison disciplinary rule prohibiting inmates from possessing contraband. Petitioner argues that this determination should be annulled because it is not supported by substantial evidence and that the misbehavior report is defective because it did not comply with certain regulations. Upon reviewing the record, we reject petitioner’s initial claim and find that the misbehavior report, combined with the testimony of the correction officer who prepared it, constitutes substantial evidence supporting the determination. As to petitioner’s procedural challenges to the misbehavior report, we find that he has either failed to preserve them for review or that they are lacking in merit.

Mikoll, J. P., Crew III, Casey, Yesawich Jr. and Spain, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.