Govan v. Bennett

Appellate Division of the Supreme Court of New York

Govan v. Bennett

305 A.D.2d 843, 758 N.Y.S.2d 560, 2003 N.Y. App. Div. LEXIS 5501

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

DecidedMay 15, 2003

StatusPublished

Cited by2 cases

This text of 305 A.D.2d 843 (Govan v. Bennett) 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

Govan v. Bennett, 305 A.D.2d 843, 758 N.Y.S.2d 560, 2003 N.Y. App. Div. LEXIS 5501 (N.Y. Ct. App. 2003).

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Opinion

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

Petitioner was found guilty of violating the prison disciplinary rules that prohibit harassment, an untidy cell and refusing a direct order after he refused to clean his cell and made obscene and abusive statements to a correction officer. Contrary to petitioner’s contention on appeal, substantial evidence in the form of the misbehavior report supports the determination of guilt (see Matter of Foster v Coughlin, 76 NY2d 964, 966 [1990]). Although petitioner presented the defense that the misbehavior report was fabricated in retaliation for grievances he had filed against the reporting correction officer, the record indicates that the grievances he submitted did not pertain to this correction officer (see Matter of Cowart v Senkowski, 263 AD2d 730 [1999]). In any event, petitioner’s retaliation defense presented a credibility issue for the Hearing Officer to resolve (see Matter of Rizzuto v Sullivan, 295 AD2d 780 [2002]).

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

Petitioner was found guilty of violating the prison disciplinary rules that prohibit harassment, an untidy cell and refusing a direct order after he refused to clean his cell and made obscene and abusive statements to a correction officer. Contrary to petitioner’s contention on appeal, substantial evidence in the form of the misbehavior report supports the determination of guilt (see Matter of Foster v Coughlin, 76 NY2d 964, 966 [1990]). Although petitioner presented the defense that the misbehavior report was fabricated in retaliation for grievances he had filed against the reporting correction officer, the record indicates that the grievances he submitted did not pertain to this correction officer (see Matter of Cowart v Senkowski, 263 AD2d 730 [1999]). In any event, petitioner’s retaliation defense presented a credibility issue for the Hearing Officer to resolve (see Matter of Rizzuto v Sullivan, 295 AD2d 780 [2002]).

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

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Bluebook (online)

305 A.D.2d 843, 758 N.Y.S.2d 560, 2003 N.Y. App. Div. LEXIS 5501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/govan-v-bennett-nyappdiv-2003.

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