Lopez v. Smith

Appellate Division of the Supreme Court of New York

Lopez v. Smith

105 A.D.2d 1124, 482 N.Y.S.2d 583, 1984 N.Y. App. Div. LEXIS 21222

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

DecidedNovember 7, 1984

StatusPublished

Cited by2 cases

This text of 105 A.D.2d 1124 (Lopez 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

Lopez v. Smith, 105 A.D.2d 1124, 482 N.Y.S.2d 583, 1984 N.Y. App. Div. LEXIS 21222 (N.Y. Ct. App. 1984).

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Determination modified, in accordance with memorandum, and, as modified, confirmed and petition granted and respondent directed to expunge from petitioner’s institutional records all references to the charges set forth in the misbehavior report dated June 17, 1983 and the hearing conducted thereon on June 21, 1983. Memorandum: This proceeding has been transferred pursuant to CPLR 7804 (subd [g]) to determine whether there is substantial evidence to support the finding that petitioner violated a prison rule prohibiting extortion of a fellow inmate. Petitioner denied the charges and testified that he had been misidentified. He called two other inmate witnesses who supported his claim that he was nowhere near the inmate who had been assaulted by two other inmates (see Matter of Friere v Smith, 104 AD2d 732). The record contains a misbehavior report prepared by a correction officer based upon information from a confidential and reliable source and testimony of an in camera interview with the confidential informant. Upon our review of the record, including the transcript of the confidential informant (see Matter of Gross v Henderson, 79 AD2d 1086, mot for lv to app den 53 NY2d 605), we find insufficient proof of the extortion as charged. The confidential source merely noted that petitioner was “standing around” when two inmates assaulted inmate Wright. The record contains only one conclusory statement to the effect that petitioner, in conjunction with three other inmates, wanted to extort inmate Wright. No further elaboration of this statement appears in the record of the proceedings. Therefore, there is not substantial evidence to support the determination of guilt.

All concur, except Hancock, Jr., J. P., and Moule, J., who dissent and vote to confirm the determination and dismiss the petition, in the following memorandum.

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Determination modified, in accordance with memorandum, and, as modified, confirmed and petition granted and respondent directed to expunge from petitioner’s institutional records all references to the charges set forth in the misbehavior report dated June 17, 1983 and the hearing conducted thereon on June 21, 1983. Memorandum: This proceeding has been transferred pursuant to CPLR 7804 (subd [g]) to determine whether there is substantial evidence to support the finding that petitioner violated a prison rule prohibiting extortion of a fellow inmate. Petitioner denied the charges and testified that he had been misidentified. He called two other inmate witnesses who supported his claim that he was nowhere near the inmate who had been assaulted by two other inmates (see Matter of Friere v Smith, 104 AD2d 732). The record contains a misbehavior report prepared by a correction officer based upon information from a confidential and reliable source and testimony of an in camera interview with the confidential informant. Upon our review of the record, including the transcript of the confidential informant (see Matter of Gross v Henderson, 79 AD2d 1086, mot for lv to app den 53 NY2d 605), we find insufficient proof of the extortion as charged. The confidential source merely noted that petitioner was “standing around” when two inmates assaulted inmate Wright. The record contains only one conclusory statement to the effect that petitioner, in conjunction with three other inmates, wanted to extort inmate Wright. No further elaboration of this statement appears in the record of the proceedings. Therefore, there is not substantial evidence to support the determination of guilt.

All concur, except Hancock, Jr., J. P., and Moule, J., who dissent and vote to confirm the determination and dismiss the petition, in the following memorandum.

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Bluebook (online)

105 A.D.2d 1124, 482 N.Y.S.2d 583, 1984 N.Y. App. Div. LEXIS 21222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lopez-v-smith-nyappdiv-1984.

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