Foust v. Selsky

Appellate Division of the Supreme Court of New York

Foust v. Selsky

260 A.D.2d 805, 688 N.Y.S.2d 777, 1999 N.Y. App. Div. LEXIS 4042

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

DecidedApril 15, 1999

StatusPublished

Cited by2 cases

This text of 260 A.D.2d 805 (Foust 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

Foust v. Selsky, 260 A.D.2d 805, 688 N.Y.S.2d 777, 1999 N.Y. App. Div. LEXIS 4042 (N.Y. Ct. App. 1999).

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Opinion

—Appeal from a judgment of the Supreme Court (Ellison, J.), entered April 16, 1998 in Chemung County, which, inter alia, partially dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Commissioner of Correctional Services finding petitioner guilty of violating certain prison disciplinary rules.

Following a hearing petitioner, a prison inmate, was found guilty of violating the prison disciplinary rules that prohibit inmates from refusing a direct order, possessing a weapon and failing to comply with frisk or search procedures. Petitioner ultimately commenced this CPLR article 78 proceeding challenging the determination of guilt. Supreme Court dismissed the petition, except to the extent of reducing the penalty imposed. Petitioner now appeals.

We affirm. The record fails to support petitioner’s claims that he received inadequate prehearing employee assistance because his assistant only gave him an excerpt from a document he requested, he was denied an opportunity to review a videotape of the subject incident and he was improperly denied the testimony of certain witnesses. Inasmuch as a complete copy of the document that petitioner requested was provided to him at the hearing and the matter was adjourned to give him an opportunity to review it, petitioner has failed to demonstrate that he was prejudiced by any alleged deficiencies with his assistance (cf., Matter of Faison v Goord, 254 AD2d 658, appeal dismissed, Iv denied 93 NY2d 827). Additionally, the record establishes that no videotape of the incident existed (see, id.). Finally, we find no error in the Hearing Officer’s denial of petitioner’s request to call various witnesses inasmuch as the record supports the Hearing Officer’s conclusion that their testimony would have been redundant or irrelevant to the subject charges (see, Matter of Fletcher v Murphy, 249 AD2d 638). All remaining claims, including the contention that petitioner was denied a fair and impartial hearing, have been examined and found to be unpersuasive.

Cardona, P. J., Mikoll, Mercure, Crew III and Yesawich Jr., [806]*806JJ., concur. Ordered that the judgment is affirmed, without costs.

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—Appeal from a judgment of the Supreme Court (Ellison, J.), entered April 16, 1998 in Chemung County, which, inter alia, partially dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Commissioner of Correctional Services finding petitioner guilty of violating certain prison disciplinary rules.

Following a hearing petitioner, a prison inmate, was found guilty of violating the prison disciplinary rules that prohibit inmates from refusing a direct order, possessing a weapon and failing to comply with frisk or search procedures. Petitioner ultimately commenced this CPLR article 78 proceeding challenging the determination of guilt. Supreme Court dismissed the petition, except to the extent of reducing the penalty imposed. Petitioner now appeals.

We affirm. The record fails to support petitioner’s claims that he received inadequate prehearing employee assistance because his assistant only gave him an excerpt from a document he requested, he was denied an opportunity to review a videotape of the subject incident and he was improperly denied the testimony of certain witnesses. Inasmuch as a complete copy of the document that petitioner requested was provided to him at the hearing and the matter was adjourned to give him an opportunity to review it, petitioner has failed to demonstrate that he was prejudiced by any alleged deficiencies with his assistance (cf., Matter of Faison v Goord, 254 AD2d 658, appeal dismissed, Iv denied 93 NY2d 827). Additionally, the record establishes that no videotape of the incident existed (see, id.). Finally, we find no error in the Hearing Officer’s denial of petitioner’s request to call various witnesses inasmuch as the record supports the Hearing Officer’s conclusion that their testimony would have been redundant or irrelevant to the subject charges (see, Matter of Fletcher v Murphy, 249 AD2d 638). All remaining claims, including the contention that petitioner was denied a fair and impartial hearing, have been examined and found to be unpersuasive.

Cardona, P. J., Mikoll, Mercure, Crew III and Yesawich Jr., [806]*806JJ., concur. Ordered that the judgment is affirmed, without costs.

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Bluebook (online)

260 A.D.2d 805, 688 N.Y.S.2d 777, 1999 N.Y. App. Div. LEXIS 4042, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foust-v-selsky-nyappdiv-1999.

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