Gimenez v. Artus

Appellate Division of the Supreme Court of New York

Gimenez v. Artus

63 A.D.3d 1461, 881 N.Y.S.2d 551

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

DecidedJune 25, 2009

StatusPublished

Cited by18 cases

This text of 63 A.D.3d 1461 (Gimenez v. Artus) 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

Gimenez v. Artus, 63 A.D.3d 1461, 881 N.Y.S.2d 551 (N.Y. Ct. App. 2009).

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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 a prison disciplinary rule.

Petitioner interrupted a discussion between two correction officers and then refused directives by one of the officers to be quiet and sit down. As a result, he was charged in a misbehavior report with verbal harassment, making threats and refusing a direct order. Following a tier II disciplinary hearing, petitioner [1462]*1462was found guilty of refusing a direct order and the determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of the correction officers present during the incident, provide substantial evidence supporting the determination of guilt (see Matter of Perez v Dubray, 55 AD3d 1119 [2008]; Matter of Fews v Goord, 54 AD 3d 1073, 1074 [2008]) and any contradictions between the testimony of Officer D. Barrierre and Officer Bunker created a credibility issue for the Hearing Officer to resolve (see Matter of Pena v Selsky, 53 AD3d 938, 939 [2008]). We reject petitioner’s assertion that he was improperly denied the right to call certain correctional employees as witnesses inasmuch as such individuals’ testimony would have been irrelevant since they were not present at the time of the incident and had no personal knowledge of the facts (see Matter of Hannah v Burge, 43 AD3d 1234 [2007]; Matter of Lee v Goord, 36 AD3d 1176, 1177 [2007]). We also find no support in the record for petitioner’s claim that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Purcell v McKoy, 54 AD3d 1113, 1114 [2008]; Matter of Webb v Leclaire, 52 AD3d 1131, 1133 [2008]). We have reviewed petitioner’s remaining contentions and find them to be without merit.

Cardona, P.J., Spain, Kane, Stein and McCarthy, 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 a prison disciplinary rule.

Petitioner interrupted a discussion between two correction officers and then refused directives by one of the officers to be quiet and sit down. As a result, he was charged in a misbehavior report with verbal harassment, making threats and refusing a direct order. Following a tier II disciplinary hearing, petitioner [1462]*1462was found guilty of refusing a direct order and the determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of the correction officers present during the incident, provide substantial evidence supporting the determination of guilt (see Matter of Perez v Dubray, 55 AD3d 1119 [2008]; Matter of Fews v Goord, 54 AD 3d 1073, 1074 [2008]) and any contradictions between the testimony of Officer D. Barrierre and Officer Bunker created a credibility issue for the Hearing Officer to resolve (see Matter of Pena v Selsky, 53 AD3d 938, 939 [2008]). We reject petitioner’s assertion that he was improperly denied the right to call certain correctional employees as witnesses inasmuch as such individuals’ testimony would have been irrelevant since they were not present at the time of the incident and had no personal knowledge of the facts (see Matter of Hannah v Burge, 43 AD3d 1234 [2007]; Matter of Lee v Goord, 36 AD3d 1176, 1177 [2007]). We also find no support in the record for petitioner’s claim that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Purcell v McKoy, 54 AD3d 1113, 1114 [2008]; Matter of Webb v Leclaire, 52 AD3d 1131, 1133 [2008]). We have reviewed petitioner’s remaining contentions and find them to be without merit.

Cardona, P.J., Spain, Kane, Stein and McCarthy, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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63 A.D.3d 1461, 881 N.Y.S.2d 551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gimenez-v-artus-nyappdiv-2009.

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