Donato v. Duncan

Appellate Division of the Supreme Court of New York

Donato v. Duncan

272 A.D.2d 768, 708 N.Y.S.2d 914, 2000 N.Y. App. Div. LEXIS 5718

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 18, 2000

StatusPublished

Cited by1 cases

This text of 272 A.D.2d 768 (Donato v. Duncan) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Donato v. Duncan, 272 A.D.2d 768, 708 N.Y.S.2d 914, 2000 N.Y. App. Div. LEXIS 5718 (N.Y. Ct. App. 2000).

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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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was found guilty of lewd exposure and being out of place. Contrary to petitioner’s contention, the misbehavior report, together with the testimony of the correction officer who authored it after observing [769]*769petitioner’s conduct, as well as petitioner’s own testimony, provide substantial evidence of petitioner’s guilt (see, Matter of Garnette v Goord, 270 AD2d 536; Matter of McNair v Goord, 265 AD2d 716).

Due to petitioner’s failure to assert the issue of Hearing Officer bias at the disciplinary hearing, petitioner has waived the right to raise this issue in the context of this proceeding. Were we to review petitioner’s allegation of bias, we would reject it as there is nothing in the record to indicate that the disciplinary hearing was conducted in anything other than a fair and equitable manner (see, Matter of Farrakhan v Selsky, 239 AD2d 685), or that the outcome of this hearing flowed from any bias (see, Matter of McNair v Goord, supra).

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

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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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was found guilty of lewd exposure and being out of place. Contrary to petitioner’s contention, the misbehavior report, together with the testimony of the correction officer who authored it after observing [769]*769petitioner’s conduct, as well as petitioner’s own testimony, provide substantial evidence of petitioner’s guilt (see, Matter of Garnette v Goord, 270 AD2d 536; Matter of McNair v Goord, 265 AD2d 716).

Due to petitioner’s failure to assert the issue of Hearing Officer bias at the disciplinary hearing, petitioner has waived the right to raise this issue in the context of this proceeding. Were we to review petitioner’s allegation of bias, we would reject it as there is nothing in the record to indicate that the disciplinary hearing was conducted in anything other than a fair and equitable manner (see, Matter of Farrakhan v Selsky, 239 AD2d 685), or that the outcome of this hearing flowed from any bias (see, Matter of McNair v Goord, supra).

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

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Bluebook (online)

272 A.D.2d 768, 708 N.Y.S.2d 914, 2000 N.Y. App. Div. LEXIS 5718, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donato-v-duncan-nyappdiv-2000.

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