Gonzalez v. Selsky

Appellate Division of the Supreme Court of New York

Gonzalez v. Selsky

253 A.D.2d 940, 678 N.Y.S.2d 399, 1998 N.Y. App. Div. LEXIS 9376

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

DecidedSeptember 10, 1998

StatusPublished

Cited by7 cases

This text of 253 A.D.2d 940 (Gonzalez v. Selsky) 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. Selsky, 253 A.D.2d 940, 678 N.Y.S.2d 399, 1998 N.Y. App. Div. LEXIS 9376 (N.Y. Ct. App. 1998).

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Opinion

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Washington County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was found guilty of violating the prison disciplinary rules that prohibit inmates from conspiring or taking any action which is intended to take over any area of the correctional facility and engaging in conduct which disturbs the order of the correctional facility. Evidence presented at the disciplinary hearing included the misbehavior report written by a correction officer who observed petitioner instructing other inmates in Spanish and with hand gestures how to break through and crawl under a fence during a disturbance involving over 300 inmates in the east yard of the facility. Notwithstanding the correction officer’s testimony that he does not understand Spanish, the misbehavior report describing petitioner’s actions together with the corroborating testimony presented at the hearing provided substantial evidence to support the determination of petitioner’s guilt on both charges (see, Matter of Foster v Coughlin, 76 NY2d 964, 966; Matter of Calligros v Great Meadow Correctional Facility, 246 AD2d 700). To the extent that petitioner’s testimony conflicted with the misbehavior report and the correction officer’s testimony, this created a credibility issue for the Hearing Officer to resolve (see. Matter of De La Rosa v Portuondo, 247 AD2d 810, 811). Claimant’s remaining contentions, including the lack of adequate notice of the charges, that he was not permitted to prepare a defense and that the Hearing Officer was biased, have been reviewed and found to be without merit.

Cardona, P. J., Mercure, White, Peters and Spain, 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 Washington County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was found guilty of violating the prison disciplinary rules that prohibit inmates from conspiring or taking any action which is intended to take over any area of the correctional facility and engaging in conduct which disturbs the order of the correctional facility. Evidence presented at the disciplinary hearing included the misbehavior report written by a correction officer who observed petitioner instructing other inmates in Spanish and with hand gestures how to break through and crawl under a fence during a disturbance involving over 300 inmates in the east yard of the facility. Notwithstanding the correction officer’s testimony that he does not understand Spanish, the misbehavior report describing petitioner’s actions together with the corroborating testimony presented at the hearing provided substantial evidence to support the determination of petitioner’s guilt on both charges (see, Matter of Foster v Coughlin, 76 NY2d 964, 966; Matter of Calligros v Great Meadow Correctional Facility, 246 AD2d 700). To the extent that petitioner’s testimony conflicted with the misbehavior report and the correction officer’s testimony, this created a credibility issue for the Hearing Officer to resolve (see. Matter of De La Rosa v Portuondo, 247 AD2d 810, 811). Claimant’s remaining contentions, including the lack of adequate notice of the charges, that he was not permitted to prepare a defense and that the Hearing Officer was biased, have been reviewed and found to be without merit.

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

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Bluebook (online)

253 A.D.2d 940, 678 N.Y.S.2d 399, 1998 N.Y. App. Div. LEXIS 9376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gonzalez-v-selsky-nyappdiv-1998.

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