Garrastequi v. Goord

252 A.D.2d 638, 675 N.Y.S.2d 196, 1998 N.Y. App. Div. LEXIS 8056

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 2, 1998
• Status: Published

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 certain prison disciplinary rules.

Petitioner, an inmate, was charged in a misbehavior report with violating various prison disciplinary rules stemming from his participation in a riot in the recreation area of the correctional facility where he was confined. Petitioner pleaded guilty to disobeying a direct order and, following a disciplinary hearing, he was found guilty of rioting, engaging in violent conduct and possession of a weapon.

* We reject petitioner’s contention that the misbehavior report did not specify with particularity his role in the riot. The detailed misbehavior report specifically identified petitioner as a participant in the melee and established that all participants were throwing metal chairs or had hand-held weapons (see, Matter of Alvarez v Coombe, 239 AD2d 810). This evidence, together with the testimony of the correction officer who issued the report and witnessed the incident, provides substantial evidence to support the determination of petitioner’s guilt (see, Matter of Calligros v Great Meadow Correctional Facility, 246 AD2d 700). Although petitioner maintained that he was not involved in the incident, this presented a credibility issue for the Hearing Officer to resolve (see, Matter of Alvarez v Coombe, supra). Petitioner’s remaining contentions, including that he was denied the right to call certain witnesses, have been reviewed and found to be either unpreserved for our review or lacking in merit.

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

Petitioner was also found not guilty of assault. Although petitioner was also charged with fighting and creating a disturbance, no disposition was made as to these charges.