Gonzalez v. Goord

Appellate Division of the Supreme Court of New York

Gonzalez v. Goord

44 A.D.3d 1180, 843 N.Y.S.2d 736

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

DecidedOctober 25, 2007

StatusPublished

This text of 44 A.D.3d 1180 (Gonzalez v. Goord) 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

Gonzalez v. Goord, 44 A.D.3d 1180, 843 N.Y.S.2d 736 (N.Y. Ct. App. 2007).

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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, a prison inmate, reported to the wrong location to attend an assigned program and presented documentation authorizing his presence that apparently was signed by the program coordinator but had not been approved by the program director. It later was determined that petitioner was, in fact, not authorized to report to that location due to a prior disciplinary infraction. As a result, petitioner was charged in a misbehavior report with violating numerous prison disciplinary rules. Following a tier III disciplinary hearing, he was found guilty of being out of place and making false statements, and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

The misbehavior report, related documentation and hearing testimony provide substantial evidence supporting the determination of guilt (see Matter of Dexter v Goord, 43 AD3d 516, 517 [2007]). As to petitioner’s procedural claims, although the hearing began more than seven days after petitioner was served with the misbehavior report as required by 7 NYCRR 251-5.1 (a), a timely extension was obtained due to the Hearing Officer’s unavailability, and the hearing was commenced by the date set forth in the extension (see Matter of Cepeda v Goord, 39 AD3d 640, 641 [2007]). Contrary to petitioner’s assertion, the record does not reveal that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Moss v Goord, 36 AD3d 977, 978 [2007]). Petitioner’s remaining contentions have either not been preserved for our review or are lacking in merit.

Crew III, J.P., Peters, Carpinello, Mugglin and Lahtinen, 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 Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, reported to the wrong location to attend an assigned program and presented documentation authorizing his presence that apparently was signed by the program coordinator but had not been approved by the program director. It later was determined that petitioner was, in fact, not authorized to report to that location due to a prior disciplinary infraction. As a result, petitioner was charged in a misbehavior report with violating numerous prison disciplinary rules. Following a tier III disciplinary hearing, he was found guilty of being out of place and making false statements, and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

The misbehavior report, related documentation and hearing testimony provide substantial evidence supporting the determination of guilt (see Matter of Dexter v Goord, 43 AD3d 516, 517 [2007]). As to petitioner’s procedural claims, although the hearing began more than seven days after petitioner was served with the misbehavior report as required by 7 NYCRR 251-5.1 (a), a timely extension was obtained due to the Hearing Officer’s unavailability, and the hearing was commenced by the date set forth in the extension (see Matter of Cepeda v Goord, 39 AD3d 640, 641 [2007]). Contrary to petitioner’s assertion, the record does not reveal that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Moss v Goord, 36 AD3d 977, 978 [2007]). Petitioner’s remaining contentions have either not been preserved for our review or are lacking in merit.

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

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Bluebook (online)

44 A.D.3d 1180, 843 N.Y.S.2d 736, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gonzalez-v-goord-nyappdiv-2007.

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