Goncalves v. Berbary

Appellate Division of the Supreme Court of New York

Goncalves v. Berbary

14 A.D.3d 743, 786 N.Y.S.2d 841, 2005 N.Y. App. Div. LEXIS 64

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

DecidedJanuary 6, 2005

StatusPublished

Cited by4 cases

This text of 14 A.D.3d 743 (Goncalves v. Berbary) 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

Goncalves v. Berbary, 14 A.D.3d 743, 786 N.Y.S.2d 841, 2005 N.Y. App. Div. LEXIS 64 (N.Y. Ct. App. 2005).

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Opinion

[744]*744Proceeding 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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner challenges a determination finding him guilty of violating the prison disciplinary rules that prohibit violent conduct, harassment and making threats. The misbehavior report relates that when petitioner’s request for additional toilet paper was denied by a correction officer who was passing out supplies, petitioner threatened the correction officer and a bar of soap was thrown from the cell, hitting the correction officer in the leg. In addition to the misbehavior report, a videotape of the incident, although not conclusive, corroborates part of the misbehavior report. Although petitioner maintains that it was his cellmate who was involved in the incident, petitioner’s testimony and that of his cellmate establish that petitioner was in fact involved in an exchange with the correction officer. Contrary to petitioner’s contention, the misbehavior report, videotape and testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Porter v Goord, 7 AD3d 847 [2004]). Testimony at the hearing contradicting the events as set forth in the misbehavior report created a credibility issue for the Hearing Officer to resolve (see Matter of Nimmons v Goord, 7 AD3d 887 [2004]). We are also unpersuaded by petitioner’s contention of hearing officer bias inasmuch as a review of the record establishes that the outcome of the hearing flowed from the evidence adduced at the hearing and not from any alleged bias on the part of the Hearing Officer (see Matter of Brown v Selsky, 5 AD3d 905, 906-907 [2004]).

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

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[744]*744Proceeding 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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner challenges a determination finding him guilty of violating the prison disciplinary rules that prohibit violent conduct, harassment and making threats. The misbehavior report relates that when petitioner’s request for additional toilet paper was denied by a correction officer who was passing out supplies, petitioner threatened the correction officer and a bar of soap was thrown from the cell, hitting the correction officer in the leg. In addition to the misbehavior report, a videotape of the incident, although not conclusive, corroborates part of the misbehavior report. Although petitioner maintains that it was his cellmate who was involved in the incident, petitioner’s testimony and that of his cellmate establish that petitioner was in fact involved in an exchange with the correction officer. Contrary to petitioner’s contention, the misbehavior report, videotape and testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Porter v Goord, 7 AD3d 847 [2004]). Testimony at the hearing contradicting the events as set forth in the misbehavior report created a credibility issue for the Hearing Officer to resolve (see Matter of Nimmons v Goord, 7 AD3d 887 [2004]). We are also unpersuaded by petitioner’s contention of hearing officer bias inasmuch as a review of the record establishes that the outcome of the hearing flowed from the evidence adduced at the hearing and not from any alleged bias on the part of the Hearing Officer (see Matter of Brown v Selsky, 5 AD3d 905, 906-907 [2004]).

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

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Bluebook (online)

14 A.D.3d 743, 786 N.Y.S.2d 841, 2005 N.Y. App. Div. LEXIS 64, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goncalves-v-berbary-nyappdiv-2005.

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