Jackson v. Coughlin

129 A.D.2d 639, 514 N.Y.S.2d 117, 1987 N.Y. App. Div. LEXIS 45320

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 13, 1987
• Status: Published

Opinion

In three proceedings pursuant to CPLR article 78 to review determinations made after superintendent’s hearings, which were affirmed by the respondent commissioner, finding the petitioner guilty of misbehavior and imposing penalties, the petitioner appeals from three judgments of the Supreme Court, Dutchess County (Beisner, J.), dated October 25, 1985, October 28, 1985 and October 31, 1985, respectively, which dismissed the respective proceedings.

Ordered that the judgments are affirmed, without costs or disbursements.

We have reviewed the record and find no support for the petitioner’s claims of procedural irregularities in the conduct of the superintendent’s hearings which resulted in findings of guilt of multiple charges of misbehavior, and the imposition of penalties. The petitioner was duly served with formal charges (see, 7 NYCRR 251-3.1, 254.3; Matter of Bennett v LeFevre, 115 AD2d 141), and the hearings were, in each case, timely (see, 7 NYCRR 251-5.1; Matter of Tracey v Coughlin, 122 AD2d 459; Matter of Newman v Coughlin, 110 AD2d 981; People ex rel. De Fulmer v Scully, 110 AD2d 671, appeal dismissed 65 NY2d 925; Matter of Estades v Coughlin, 101 AD2d 299). Furthermore, the petitioner was duly afforded the opportunity to select employee assistants from an established list (see, 7 NYCRR 251-4.1 [a]), and, where he did select an assistant, the assistant performed his function by meeting with the petitioner and explaining the charges to him, and by interviewing his witnesses (see, 7 NYCRR 251-4.2; Matter of Boyd v Coughlin, 105 AD2d 532; cf., People ex rel. Selcov v Coughlin, 98 AD2d 733). In the one instance where the petitioner did not receive assistance, the record supports the hearing officer’s determination that the petitioner validly waived his right by intentionally selecting as his assistant the very correction officer who had filed the misbehavior report against him, and then refusing to make an alternative choice (cf., Matter of Johnakin v Racette, 111 AD2d 579). The petitioner was not deprived of the right to call witnesses on his behalf (see, 7 NYCRR 254.5 [a]) and, in those instances where, for reasons of security, the witnesses were not permitted to testify in his presence, he was served with an adequate written statement of reasons and was afforded the opportunity to hear • tape recordings of their testimony (see, 7 NYCRR 254.5 [b]; Matter of Cortez v Coughlin, 67 NY2d 907; Matter of Garcia v LeFevre, 64 NY2d 1001; People ex rel. Bradley v Smith, 115 , appeal denied 67 NY2d 604). In each instance, the determination of the hearing officer was supported by substantial evidence (see, Matter of Perez v Wilmot, 67 NY2d 615; People ex rel. Vega v Smith, 66 NY2d 130; Matter of Sanders v Coughlin, 119 AD2d 943), and petitioner was duly served with a written statement of the evidence relied upon by the hearing officer in making his determination and the reason for the penalty imposed (see, 7 NYCRR 253.7 [c]; Matter of Gross v Henderson, 79 AD2d 1086, appeal denied 53 NY2d 605; cf., Matter of Mallard v Dalsheim, 97 AD2d 545). Finally, the petitioner’s appeals to the commissioner were timely decided (see, 7 NYCRR 254.8).

We have considered petitioner’s remaining contentions and find them to be without merit. Bracken, J. P., Brown, Niehoff and Kooper, JJ., concur.