Johnson v. Smith

Appellate Division of the Supreme Court of New York

Johnson v. Smith

49 A.D.3d 1116, 853 N.Y.2d 750

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

DecidedMarch 27, 2008

StatusPublished

This text of 49 A.D.3d 1116 (Johnson 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

Johnson v. Smith, 49 A.D.3d 1116, 853 N.Y.2d 750 (N.Y. Ct. App. 2008).

Pincite

Opinion

[1117]*1117Petitioner commenced this CPLR article 78 proceeding challenging a tier II disciplinary determination which found him guilty of refusing a direct order and creating a disturbance. According to the misbehavior report, although petitioner was among a group of inmates in the commissary area that was twice given a direct order to lower their voices, petitioner nevertheless continued to speak in a loud manner. The misbehavior report and the hearing testimony of the correction officer that authored it provide substantial evidence to support the determination of guilt (see Matter of Sanders v Goord, 47 AD3d 987, 988 [2008]; Matter of Martin v Goord, 46 AD3d 1294, 1295 [2007]). Petitioner’s claim that he was not among the group involved in the incident created a credibility issue for the Hearing Officer to resolve (see Matter of Martin v Goord, 46 AD3d at 1295; Matter of Smith v Goord, 45 AD3d 1119, 1120 [2007]). Contrary to petitioner’s contention, the misbehavior report was sufficiently detailed to inform him of the charges and to enable him to prepare a defense (see Matter of Reddick v Goord, 42 AD3d 764, 764 [2007]; Matter of Morillo v Goord, 38 AD3d 947, 948 [2007]). Petitioner’s remaining claim of hearing officer bias is not preserved and, in any event, is not persuasive.

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

Free access — add to your briefcase to read the full text and ask questions with AI

[1117]*1117Petitioner commenced this CPLR article 78 proceeding challenging a tier II disciplinary determination which found him guilty of refusing a direct order and creating a disturbance. According to the misbehavior report, although petitioner was among a group of inmates in the commissary area that was twice given a direct order to lower their voices, petitioner nevertheless continued to speak in a loud manner. The misbehavior report and the hearing testimony of the correction officer that authored it provide substantial evidence to support the determination of guilt (see Matter of Sanders v Goord, 47 AD3d 987, 988 [2008]; Matter of Martin v Goord, 46 AD3d 1294, 1295 [2007]). Petitioner’s claim that he was not among the group involved in the incident created a credibility issue for the Hearing Officer to resolve (see Matter of Martin v Goord, 46 AD3d at 1295; Matter of Smith v Goord, 45 AD3d 1119, 1120 [2007]). Contrary to petitioner’s contention, the misbehavior report was sufficiently detailed to inform him of the charges and to enable him to prepare a defense (see Matter of Reddick v Goord, 42 AD3d 764, 764 [2007]; Matter of Morillo v Goord, 38 AD3d 947, 948 [2007]). Petitioner’s remaining claim of hearing officer bias is not preserved and, in any event, is not persuasive.

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

Cite This Page — Counsel Stack

Bluebook (online)

49 A.D.3d 1116, 853 N.Y.2d 750, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-smith-nyappdiv-2008.

Opinion

Related

Cite This Page — Counsel Stack