Faraldo v. Senkowski

Appellate Division of the Supreme Court of New York

Faraldo v. Senkowski

275 A.D.2d 833, 713 N.Y.S.2d 502, 2000 N.Y. App. Div. LEXIS 9210

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

DecidedSeptember 14, 2000

StatusPublished

Cited by2 cases

This text of 275 A.D.2d 833 (Faraldo v. Senkowski) 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

Faraldo v. Senkowski, 275 A.D.2d 833, 713 N.Y.S.2d 502, 2000 N.Y. App. Div. LEXIS 9210 (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 Clinton County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Following a tier II hearing, petitioner was found guilty of interfering with employees and refusing to obey a direct order after a misbehavior report alleged that petitioner refused to get up to the morning alarm. Contrary to petitioner’s contention, the detailed misbehavior report was sufficiently detailed and probative to constitute substantial evidence of petitioner’s guilt (see, Matter of Kilgore v Goord, 273 AD2d 695). Petitioner’s contention that he did not hear the correction officer’s repeated warnings to wake up raised a credibility issue properly resolved by the Hearing Officer (see, Matter of Malik v Senkowski, 271 AD2d 793).

We also reject petitioner’s contention that the commencement of the hearing violated his due process rights because he was not served with a copy of the misbehavior report at least 24 hours prior to the commencement of the hearing. Any challenge pertaining to the early commencement of the hearing was waived by petitioner’s failure to raise it on administrative review (see, Matter Berner v Goord, 262 AD2d 881). In any event, although the hearing initially commenced 22 minutes short of the 24-hour requirement, the hearing was thereafter adjourned for one week in order to call witnesses, and we find, therefore, that petitioner was not prejudiced by this harmless error. Petitioner’s remaining contentions, including his claim of Hearing Officer bias, have been examined and found to be without merit.

Cardona, P. J., Spain, Carpinello, Graffeo 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 Clinton County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Following a tier II hearing, petitioner was found guilty of interfering with employees and refusing to obey a direct order after a misbehavior report alleged that petitioner refused to get up to the morning alarm. Contrary to petitioner’s contention, the detailed misbehavior report was sufficiently detailed and probative to constitute substantial evidence of petitioner’s guilt (see, Matter of Kilgore v Goord, 273 AD2d 695). Petitioner’s contention that he did not hear the correction officer’s repeated warnings to wake up raised a credibility issue properly resolved by the Hearing Officer (see, Matter of Malik v Senkowski, 271 AD2d 793).

We also reject petitioner’s contention that the commencement of the hearing violated his due process rights because he was not served with a copy of the misbehavior report at least 24 hours prior to the commencement of the hearing. Any challenge pertaining to the early commencement of the hearing was waived by petitioner’s failure to raise it on administrative review (see, Matter Berner v Goord, 262 AD2d 881). In any event, although the hearing initially commenced 22 minutes short of the 24-hour requirement, the hearing was thereafter adjourned for one week in order to call witnesses, and we find, therefore, that petitioner was not prejudiced by this harmless error. Petitioner’s remaining contentions, including his claim of Hearing Officer bias, have been examined and found to be without merit.

Cardona, P. J., Spain, Carpinello, Graffeo and Rose, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Bluebook (online)

275 A.D.2d 833, 713 N.Y.S.2d 502, 2000 N.Y. App. Div. LEXIS 9210, Counsel Stack Legal Research, https://law.counselstack.com/opinion/faraldo-v-senkowski-nyappdiv-2000.

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