Lee v. Goord

Appellate Division of the Supreme Court of New York

Lee v. Goord

36 A.D.3d 1176, 827 N.Y.S.2d 373

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

DecidedJanuary 18, 2007

StatusPublished

Cited by10 cases

This text of 36 A.D.3d 1176 (Lee v. Goord) 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

Lee v. Goord, 36 A.D.3d 1176, 827 N.Y.S.2d 373 (N.Y. Ct. App. 2007).

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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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with solicitation, lying and unauthorized legal assistance. Following a tier III disciplinary hearing, petitioner was found guilty of all charges. After an administrative appeal, the determination was affirmed with reduced penalties. Petitioner commenced this CPLR article 78 proceeding challenging the determination.

We confirm. The misbehavior report, together with correspondence to and from petitioner, a signed witness interview statement and the testimony of a correction investigator, provide substantial evidence supporting the determination of guilt (see Matter of Price v Goord, 29 AD3d 1203, 1204 [2006]; Matter of [1177]*1177Vizcaino v Selsky, 26 AD3d 574 [2006], lv denied 7 NY3d 708 [2006]). Petitioner’s exculpatory statements as to the nature of his acts and his witness’s testimony presented a credibility issue for the Hearing Officer to resolve (see Matter of Miller v New York State Dept. of Correctional Servs., 295 AD2d 714, 714-715 [2002]; Matter of McGoey v Selsky, 260 AD2d 814, 815 [1999]).

Petitioner’s procedural objections are unpersuasive. The record demonstrates that petitioner’s noninmate witness refused to testify and that the Hearing Officer personally ascertained that the refusal was genuine; thus, petitioner was not deprived of his right to call witnesses (see Matter of Williams v Goord, 242 AD2d 842 [1997]). Petitioner was properly denied two witnesses who had no personal knowledge of the charges and whose testimony would have been irrelevant (see Matter of Caraway v Herbert, 285 AD2d 778 [2001]). Petitioner’s remaining contentions, to the extent preserved, have been reviewed and determined to be without merit.

Mercure, J.P, Spain, Carpinello, Mugglin and Kane, 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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with solicitation, lying and unauthorized legal assistance. Following a tier III disciplinary hearing, petitioner was found guilty of all charges. After an administrative appeal, the determination was affirmed with reduced penalties. Petitioner commenced this CPLR article 78 proceeding challenging the determination.

We confirm. The misbehavior report, together with correspondence to and from petitioner, a signed witness interview statement and the testimony of a correction investigator, provide substantial evidence supporting the determination of guilt (see Matter of Price v Goord, 29 AD3d 1203, 1204 [2006]; Matter of [1177]*1177Vizcaino v Selsky, 26 AD3d 574 [2006], lv denied 7 NY3d 708 [2006]). Petitioner’s exculpatory statements as to the nature of his acts and his witness’s testimony presented a credibility issue for the Hearing Officer to resolve (see Matter of Miller v New York State Dept. of Correctional Servs., 295 AD2d 714, 714-715 [2002]; Matter of McGoey v Selsky, 260 AD2d 814, 815 [1999]).

Petitioner’s procedural objections are unpersuasive. The record demonstrates that petitioner’s noninmate witness refused to testify and that the Hearing Officer personally ascertained that the refusal was genuine; thus, petitioner was not deprived of his right to call witnesses (see Matter of Williams v Goord, 242 AD2d 842 [1997]). Petitioner was properly denied two witnesses who had no personal knowledge of the charges and whose testimony would have been irrelevant (see Matter of Caraway v Herbert, 285 AD2d 778 [2001]). Petitioner’s remaining contentions, to the extent preserved, have been reviewed and determined to be without merit.

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

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Bluebook (online)

36 A.D.3d 1176, 827 N.Y.S.2d 373, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lee-v-goord-nyappdiv-2007.

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