Elmore v. Smith

Appellate Division of the Supreme Court of New York

Elmore v. Smith

97 A.D.3d 872, 947 N.Y.2d 349

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

DecidedJuly 5, 2012

StatusPublished

This text of 97 A.D.3d 872 (Elmore v. Smith) 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

Elmore v. Smith, 97 A.D.3d 872, 947 N.Y.2d 349 (N.Y. Ct. App. 2012).

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Opinion

Following a physical altercation with another inmate, petitioner was charged in a misbehavior report with engaging in violent conduct and creating a disturbance. He was found guilty of the charges after a tier II disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of the correction officer who prepared it and had witnessed the incident, provide substantial evidence supporting the determination of guilt (see Matter of Benson v Selsky, 50 AD3d 1347 [2008]; Matter of Kennedy v Lacy, 277 AD2d 625 [2000]). Although petitioner maintained that he and the other inmate were only playing around, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Crenshaw v Fischer, 89 AD 3d 1343, 1344 [2011]; Matter of Chiarappa v Fischer, 84 AD3d 1628, 1629 [2011]). His remaining contentions have not been preserved for our review due to his failure to raise them at the disciplinary hearing (see Matter of Lewis v Lape, 90 AD3d 1259, 1260 [2011], lv denied 18 NY3d 809 [2012]).

Rose, J.E, Malone Jr., Kavanagh, Garry and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Following a physical altercation with another inmate, petitioner was charged in a misbehavior report with engaging in violent conduct and creating a disturbance. He was found guilty of the charges after a tier II disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of the correction officer who prepared it and had witnessed the incident, provide substantial evidence supporting the determination of guilt (see Matter of Benson v Selsky, 50 AD3d 1347 [2008]; Matter of Kennedy v Lacy, 277 AD2d 625 [2000]). Although petitioner maintained that he and the other inmate were only playing around, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Crenshaw v Fischer, 89 AD 3d 1343, 1344 [2011]; Matter of Chiarappa v Fischer, 84 AD3d 1628, 1629 [2011]). His remaining contentions have not been preserved for our review due to his failure to raise them at the disciplinary hearing (see Matter of Lewis v Lape, 90 AD3d 1259, 1260 [2011], lv denied 18 NY3d 809 [2012]).

Rose, J.E, Malone Jr., Kavanagh, Garry and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Bluebook (online)

97 A.D.3d 872, 947 N.Y.2d 349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elmore-v-smith-nyappdiv-2012.

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