Levy v. Goord

Appellate Division of the Supreme Court of New York

Levy v. Goord

22 A.D.3d 929, 802 N.Y.S.2d 280

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

DecidedOctober 20, 2005

StatusPublished

Cited by5 cases

This text of 22 A.D.3d 929 (Levy 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

Levy v. Goord, 22 A.D.3d 929, 802 N.Y.S.2d 280 (N.Y. Ct. App. 2005).

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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 commenced this CPLR article 78 proceeding challenging a determination finding him guilty of violating the prison disciplinary rules that prohibit disobeying a direct order and failing to comply with urinalysis procedures after he failed to provide a urine sample within three hours of being ordered to do so. Contrary to petitioner’s contention, the misbehavior report, documentary evidence and testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Infante v Selsky, 21 AD3d 633 [2005]). Although petitioner asserts that he was not given the full three hours in which to provide a urine sample (see 7 NYCRR 1020.4 [930]*930[d] [4]), the conflicting testimony presented a credibility issue for the Hearing Officer to resolve (see Matter of Nimmons v Goord, 7 AD3d 887, 888 [2004]; Matter of Williams v Ricks, 303 AD2d 860, 861 [2003]). Petitioner’s remaining contentions, including his challenge to the videotape evidence and claim of hearing officer bias, have been reviewed and found to be without merit.

Mercure, J.P., Peters, Spain, Mugglin and Rose, 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 commenced this CPLR article 78 proceeding challenging a determination finding him guilty of violating the prison disciplinary rules that prohibit disobeying a direct order and failing to comply with urinalysis procedures after he failed to provide a urine sample within three hours of being ordered to do so. Contrary to petitioner’s contention, the misbehavior report, documentary evidence and testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Infante v Selsky, 21 AD3d 633 [2005]). Although petitioner asserts that he was not given the full three hours in which to provide a urine sample (see 7 NYCRR 1020.4 [930]*930[d] [4]), the conflicting testimony presented a credibility issue for the Hearing Officer to resolve (see Matter of Nimmons v Goord, 7 AD3d 887, 888 [2004]; Matter of Williams v Ricks, 303 AD2d 860, 861 [2003]). Petitioner’s remaining contentions, including his challenge to the videotape evidence and claim of hearing officer bias, have been reviewed and found to be without merit.

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

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Bluebook (online)

22 A.D.3d 929, 802 N.Y.S.2d 280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/levy-v-goord-nyappdiv-2005.

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