Licastro v. Coughlin

154 A.D.2d 938, 546 N.Y.S.2d 1000, 1989 N.Y. App. Div. LEXIS 13052

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 6, 1989
• Status: Published

Opinion

Determination unanimously confirmed and petition dismissed. Memorandum: The misbehavior report filed by Correction Sergeant McKernon, together with the sergeant’s testimony at the Tier III hearing, constituted substantial evidence supporting the determination that petitioner violated the institutional rules with which he was charged (see, People ex rel. Vega v Smith, 66 NY2d 130). Moreover, petitioner concedes that there was substantial evidence to support the determination that he violated inmate rule 100.10, assault, as charged in the misbehavior report prepared by Correction Sergeant Perez. The penalties imposed are not so disproportionate to the offenses as to be shocking to one’s sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222, 233).

Finally, the issue concerning the timeliness of the Tier III hearing on the violation charged in the Perez misbehavior report is not properly raised before this court (see, Matter of Bones v Kelly, 122 AD2d 593; Matter of Gaines v Kelly, 117 AD2d 1002). (Article 78 proceeding transferred by order of . Supreme Court, Wyoming County, Dadd, J.) Present — Dillon, P. J., Green, Pine, Balio and Davis, JJ.