Dolan v. Annucci

Appellate Division of the Supreme Court of New York

Dolan v. Annucci

120 A.D.3d 870, 990 N.Y.S.2d 417

Appellate Division of the Supreme Court of the State of New York·Decided August 7, 2014·Published·Cited by 1 cases

Opinion

[871] 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.

Following a verbal altercation with another inmate in the laundry area and bathroom of their housing unit, petitioner was charged in a detailed misbehavior report with creating a disturbance. That report, as well as the testimony of the correction officer who authored it, provided substantial evidence for the determination that petitioner was guilty as charged (see Matter of Green v Bradt, 91 AD3d 1235, 1237 [2012], lv denied 19 NY3d 802 [2012]; Matter of Hale v Selsky, 57 AD3d 1136, 1137 [2008], appeal dismissed 12 NY3d 776 [2009]). Petitioner’s contrary testimony that he was not arguing with the other inmate and was only speaking loudly because of the nearby washing machines and dryers presented a credibility issue for the Hearing Officer to resolve (see Matter of Hale v Selsky, 57 AD3d at 1137). Further, the record does not support petitioner’s assertion that the Hearing Officer was biased or that the determination flowed from that alleged bias (see Matter of Ferguson v Fischer, 116 AD3d 1314, 1314 [2014]). Petitioner’s remaining contentions are either unpreserved or lack merit.

Garry, J.P, Rose, Egan Jr., Devine and Clark, JJ., concur.

Adjudged that the determination is confirmed, without costs, and petition dismissed.

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[871] 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.

Following a verbal altercation with another inmate in the laundry area and bathroom of their housing unit, petitioner was charged in a detailed misbehavior report with creating a disturbance. That report, as well as the testimony of the correction officer who authored it, provided substantial evidence for the determination that petitioner was guilty as charged (see Matter of Green v Bradt, 91 AD3d 1235, 1237 [2012], lv denied 19 NY3d 802 [2012]; Matter of Hale v Selsky, 57 AD3d 1136, 1137 [2008], appeal dismissed 12 NY3d 776 [2009]). Petitioner’s contrary testimony that he was not arguing with the other inmate and was only speaking loudly because of the nearby washing machines and dryers presented a credibility issue for the Hearing Officer to resolve (see Matter of Hale v Selsky, 57 AD3d at 1137). Further, the record does not support petitioner’s assertion that the Hearing Officer was biased or that the determination flowed from that alleged bias (see Matter of Ferguson v Fischer, 116 AD3d 1314, 1314 [2014]). Petitioner’s remaining contentions are either unpreserved or lack merit.

Garry, J.P, Rose, Egan Jr., Devine and Clark, JJ., concur.

Adjudged that the determination is confirmed, without costs, and petition dismissed.

Dolan v. Annucci, 120 A.D.3d 870, 990 N.Y.S.2d 417 (N.Y. Ct. App. 2014).

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Opinion

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