Gomez v. Senkowski

Appellate Division of the Supreme Court of New York

Gomez v. Senkowski

242 A.D.2d 778, 661 N.Y.S.2d 1010, 1997 N.Y. App. Div. LEXIS 8521

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

DecidedSeptember 4, 1997

StatusPublished

Cited by2 cases

This text of 242 A.D.2d 778 (Gomez 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

Gomez v. Senkowski, 242 A.D.2d 778, 661 N.Y.S.2d 1010, 1997 N.Y. App. Div. LEXIS 8521 (N.Y. Ct. App. 1997).

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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 was found guilty of violating the prison disciplinary rule prohibiting the possession of a controlled substance after a search of his cell uncovered marihuana attached to his bedpost. Initially, we note that this CPLR article 78 proceeding was properly transferred to this Court given petitioner’s contention that the Hearing Officer was biased (see, Matter of Davis v Coughlin, 200 AD2d 904, 905, n). Despite petitioner’s contention, the record indicates that the Hearing Officer considered petitioner’s testimony. The fact that the Hearing Officer did not credit petitioner’s assertion that the marihuana was not his does not constitute bias (see, Matter of Nelson v Selsky, 239 AD2d 795). Furthermore, the misbehavior report and the positive test results indicating marihuana provide substantial evidence to support the determination of petitioner’s guilt (see, Matter of Valentine v Coughlin, 200 AD2d 838).

Mikoll, J. P., Mercure, Casey, Yesawich Jr. and Carpinello, 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 was found guilty of violating the prison disciplinary rule prohibiting the possession of a controlled substance after a search of his cell uncovered marihuana attached to his bedpost. Initially, we note that this CPLR article 78 proceeding was properly transferred to this Court given petitioner’s contention that the Hearing Officer was biased (see, Matter of Davis v Coughlin, 200 AD2d 904, 905, n). Despite petitioner’s contention, the record indicates that the Hearing Officer considered petitioner’s testimony. The fact that the Hearing Officer did not credit petitioner’s assertion that the marihuana was not his does not constitute bias (see, Matter of Nelson v Selsky, 239 AD2d 795). Furthermore, the misbehavior report and the positive test results indicating marihuana provide substantial evidence to support the determination of petitioner’s guilt (see, Matter of Valentine v Coughlin, 200 AD2d 838).

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

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Bluebook (online)

242 A.D.2d 778, 661 N.Y.S.2d 1010, 1997 N.Y. App. Div. LEXIS 8521, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gomez-v-senkowski-nyappdiv-1997.

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