Jackson v. Smith

Appellate Division of the Supreme Court of New York

Jackson v. Smith

49 A.D.3d 933, 852 N.Y.2d 492

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

DecidedMarch 6, 2008

StatusPublished

Cited by3 cases

This text of 49 A.D.3d 933 (Jackson v. Smith) 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

Jackson v. Smith, 49 A.D.3d 933, 852 N.Y.2d 492 (N.Y. Ct. App. 2008).

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Opinion

Following a tier II disciplinary hearing, petitioner was found guilty of disobeying a direct order, being out of place and leaving an assigned area without authorization. Upon administrative appeal, the charge of disobeying a direct order was dismissed, but the determination was otherwise affirmed and the penalty imposed was not modified. This CPLR article 78 proceeding ensued.

Contrary to petitioner’s contentions, the misbehavior report and the hearing testimony of the correction officer who authored it provide substantial evidence to support the determination finding him guilty of being out of place and leaving an assigned area without authorization (see Matter of Galdamez v Goord, 43 AD3d 1237, 1238 [2007]; Matter of Brown v Katz, 26 AD3d 559, 559 [2006]). Petitioner’s contrary testimony created a credibility issue for the Hearing Officer to resolve (see Matter of Ohnmacht [934]*934v Goord, 47 AD3d 1030 [2008]), as did his claim that the charges were issued in retaliation for a grievance he had filed (see Matter of Porter v Goord, 47 AD3d 978, 979 [2008]).

Petitioner’s remaining claims, including his claim that the hearing was not timely completed, have been reviewed and found to be without merit.

Cardona, P.J., Spain, Carpinello, Lahtinen and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Following a tier II disciplinary hearing, petitioner was found guilty of disobeying a direct order, being out of place and leaving an assigned area without authorization. Upon administrative appeal, the charge of disobeying a direct order was dismissed, but the determination was otherwise affirmed and the penalty imposed was not modified. This CPLR article 78 proceeding ensued.

Contrary to petitioner’s contentions, the misbehavior report and the hearing testimony of the correction officer who authored it provide substantial evidence to support the determination finding him guilty of being out of place and leaving an assigned area without authorization (see Matter of Galdamez v Goord, 43 AD3d 1237, 1238 [2007]; Matter of Brown v Katz, 26 AD3d 559, 559 [2006]). Petitioner’s contrary testimony created a credibility issue for the Hearing Officer to resolve (see Matter of Ohnmacht [934]*934v Goord, 47 AD3d 1030 [2008]), as did his claim that the charges were issued in retaliation for a grievance he had filed (see Matter of Porter v Goord, 47 AD3d 978, 979 [2008]).

Petitioner’s remaining claims, including his claim that the hearing was not timely completed, have been reviewed and found to be without merit.

Cardona, P.J., Spain, Carpinello, Lahtinen and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Bluebook (online)

49 A.D.3d 933, 852 N.Y.2d 492, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-smith-nyappdiv-2008.

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