Garcia v. Bertone

Appellate Division of the Supreme Court of New York

Garcia v. Bertone

91 A.D.3d 1217, 936 N.Y.2d 919

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

DecidedJanuary 26, 2012

StatusPublished

Cited by10 cases

This text of 91 A.D.3d 1217 (Garcia v. Bertone) 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.

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Garcia v. Bertone, 91 A.D.3d 1217, 936 N.Y.2d 919 (N.Y. Ct. App. 2012).

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Opinion

[1218]*1218We confirm. The misbehavior report, together with the testimony of its author, provide substantial evidence supporting the determination of guilt (see Matter of McLaughlin v Fischer, 69 AD3d 1071, 1072 [2010]; Matter of Gaines v Fischer, 67 AD3d 1080, 1081 [2009]). While petitioner stated that he did not hear the correction officer’s initial order due to his hearing impairment and that he acted in self-defense, his testimony presented a credibility issue for the Hearing Officer to resolve (see Matter of Barclay v Zolkosky, 78 AD3d 1343, 1344 [2010]). Petitioner’s remaining contentions have not been preserved for our review or are lacking in merit.

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

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[1218]*1218We confirm. The misbehavior report, together with the testimony of its author, provide substantial evidence supporting the determination of guilt (see Matter of McLaughlin v Fischer, 69 AD3d 1071, 1072 [2010]; Matter of Gaines v Fischer, 67 AD3d 1080, 1081 [2009]). While petitioner stated that he did not hear the correction officer’s initial order due to his hearing impairment and that he acted in self-defense, his testimony presented a credibility issue for the Hearing Officer to resolve (see Matter of Barclay v Zolkosky, 78 AD3d 1343, 1344 [2010]). Petitioner’s remaining contentions have not been preserved for our review or are lacking in merit.

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

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91 A.D.3d 1217, 936 N.Y.2d 919, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garcia-v-bertone-nyappdiv-2012.

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