Emmons v. Selsky

Appellate Division of the Supreme Court of New York

Emmons v. Selsky

238 A.D.2d 651, 656 N.Y.S.2d 967, 1997 N.Y. App. Div. LEXIS 3127

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

DecidedApril 3, 1997

StatusPublished

Cited by3 cases

This text of 238 A.D.2d 651 (Emmons v. Selsky) 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

Emmons v. Selsky, 238 A.D.2d 651, 656 N.Y.S.2d 967, 1997 N.Y. App. Div. LEXIS 3127 (N.Y. Ct. App. 1997).

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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.

While a correction officer was randomly monitoring inmate telephone calls, he overheard petitioner, an inmate at Auburn Correctional Facility in Cayuga County, admit to assaulting two inmates. As a result of this information, petitioner was charged with, and found guilty of, violating the prison disciplinary rule which prohibits assaults on inmates.

We reject petitioner’s contention that the determination was not supported by substantial evidence. Although respondent concedes that it was error for the Hearing Officer to have relied upon information provided by a confidential informant without making an independent assessment as to the informant’s reliability, annulment of the determination is not required in light of the other evidence of petitioner’s guilt (see, Matter of Gardiner v Senkowski, 234 AD2d 708; Matter of Hernandez v Coughlin, 206 AD2d 578, 579, appeal dismissed, lv denied 84 NY2d 1024). The detailed misbehavior report which included petitioner’s admission of the assaults during his telephone conversation, together with, inter alia, the testimony of the correction officer who overheard the admission and authored the misbehavior report, constitute substantial evidence supporting the determination of petitioner’s guilt (see, Matter of Foster v Coughlin, 76 NY2d 964; Matter of Jones v Selsky, 223 AD2d 990). Any conflict in the testimony given at the hearing raised credibility issues for the Hearing Officer to resolve {see, Matter of Foster v Coughlin, supra, at 966). We have considered petitioner’s remaining contentions and find them to be without merit.

Cardona, P. J., Mikoll, Mercure, Crew III and White, 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 Albany County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

While a correction officer was randomly monitoring inmate telephone calls, he overheard petitioner, an inmate at Auburn Correctional Facility in Cayuga County, admit to assaulting two inmates. As a result of this information, petitioner was charged with, and found guilty of, violating the prison disciplinary rule which prohibits assaults on inmates.

We reject petitioner’s contention that the determination was not supported by substantial evidence. Although respondent concedes that it was error for the Hearing Officer to have relied upon information provided by a confidential informant without making an independent assessment as to the informant’s reliability, annulment of the determination is not required in light of the other evidence of petitioner’s guilt (see, Matter of Gardiner v Senkowski, 234 AD2d 708; Matter of Hernandez v Coughlin, 206 AD2d 578, 579, appeal dismissed, lv denied 84 NY2d 1024). The detailed misbehavior report which included petitioner’s admission of the assaults during his telephone conversation, together with, inter alia, the testimony of the correction officer who overheard the admission and authored the misbehavior report, constitute substantial evidence supporting the determination of petitioner’s guilt (see, Matter of Foster v Coughlin, 76 NY2d 964; Matter of Jones v Selsky, 223 AD2d 990). Any conflict in the testimony given at the hearing raised credibility issues for the Hearing Officer to resolve {see, Matter of Foster v Coughlin, supra, at 966). We have considered petitioner’s remaining contentions and find them to be without merit.

Cardona, P. J., Mikoll, Mercure, Crew III and White, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Bluebook (online)

238 A.D.2d 651, 656 N.Y.S.2d 967, 1997 N.Y. App. Div. LEXIS 3127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/emmons-v-selsky-nyappdiv-1997.

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