Hernandez v. Herbert

Appellate Division of the Supreme Court of New York

Hernandez v. Herbert

293 A.D.2d 850, 741 N.Y.S.2d 582, 2002 N.Y. App. Div. LEXIS 3640

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

DecidedApril 11, 2002

StatusPublished

This text of 293 A.D.2d 850 (Hernandez v. Herbert) 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

Hernandez v. Herbert, 293 A.D.2d 850, 741 N.Y.S.2d 582, 2002 N.Y. App. Div. LEXIS 3640 (N.Y. Ct. App. 2002).

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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 the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was found guilty of violating the prison disciplinary rule prohibiting possession of a weapon. As set forth in the misbehavior report, the reporting correction officer was on duty in the prison yard when he saw petitioner picking up a long, thin object from the ground. Petitioner then walked over to a snow bank where he secreted the object. A search of the snow bank was immediately undertaken by correction officers which disclosed a 10-inch-long metal shank with a cloth handle and a lanyard.

At the ensuing disciplinary hearing, the misbehavior report was admitted in evidence as was the eyewitness testimony of the reporting officer. This proof was sufficient to constitute substantial evidence of petitioner’s guilt (see, Matter of Thomas v Bennett, 271 AD2d 768; Matter of Crosby v Goord, 268 AD2d 931, 932). The exculpatory hearing testimony given by petitioner and his inmate witnesses presented issues of credibility for resolution by the Hearing Officer (see, Matter of Baldwin v Goord, 262 AD2d 691, 692). Petitioner’s assertion of Hearing Officer bias is unsupported by the record, which instead shows that he received a fair and impartial hearing (see, Matter of McCorkle v Selsky, 264 AD2d 890, 891). The remaining contentions raised by petitioner, including his argument that he was given inadequate representation by his employee assistant, have been reviewed and found to be without merit.

Cardona, P.J., Mercure, Crew III, 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 Albany County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was found guilty of violating the prison disciplinary rule prohibiting possession of a weapon. As set forth in the misbehavior report, the reporting correction officer was on duty in the prison yard when he saw petitioner picking up a long, thin object from the ground. Petitioner then walked over to a snow bank where he secreted the object. A search of the snow bank was immediately undertaken by correction officers which disclosed a 10-inch-long metal shank with a cloth handle and a lanyard.

At the ensuing disciplinary hearing, the misbehavior report was admitted in evidence as was the eyewitness testimony of the reporting officer. This proof was sufficient to constitute substantial evidence of petitioner’s guilt (see, Matter of Thomas v Bennett, 271 AD2d 768; Matter of Crosby v Goord, 268 AD2d 931, 932). The exculpatory hearing testimony given by petitioner and his inmate witnesses presented issues of credibility for resolution by the Hearing Officer (see, Matter of Baldwin v Goord, 262 AD2d 691, 692). Petitioner’s assertion of Hearing Officer bias is unsupported by the record, which instead shows that he received a fair and impartial hearing (see, Matter of McCorkle v Selsky, 264 AD2d 890, 891). The remaining contentions raised by petitioner, including his argument that he was given inadequate representation by his employee assistant, have been reviewed and found to be without merit.

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

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Bluebook (online)

293 A.D.2d 850, 741 N.Y.S.2d 582, 2002 N.Y. App. Div. LEXIS 3640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hernandez-v-herbert-nyappdiv-2002.

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