Martinez v. Goord

267 A.D.2d 1018, 700 N.Y.S.2d 902, 1999 N.Y. App. Div. LEXIS 13769

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 1999
• Status: Published

Opinion

—Determination unanimously confirmed without costs and petition dismissed. Memorandum: The misbehavior report and the testimony of its author constitute substantial evidence to support the determination that petitioner violated various inmate rules in connection with his fight with another inmate (see, Matter of Bryant v Coughlin, 77 NY2d 642, 647; People ex rel. Vega v Smith, 66 NY2d 130, 139). The assertions of petitioner and the other inmate that petitioner did not possess a weapon during the fight raised a credibility issue for the Hearing Officer to resolve (see, Matter of Foster v Coughlin, 76 NY2d 964, 966). We reject petitioner’s contention that annulment of the determination is required because the hearing transcript contains numerous indications that the tape recording is inaudible. Because petitioner suffers from a severe speech impediment, he was afforded an opportunity to submit his plea, ask questions, respond to questions and provide a written statement of his defense to the Hearing Officer. As a result, petitioner was able to present his defense, and the inaudible portions of the hearing “are not 'so significant as to preclude meaningful review of the proceedings, particularly as they relate to petitioner’s arguments’ ” (Matter of Webb v Goord, 265 AD2d 809, quoting Matter of Fletcher v Selsky, 199 AD2d 865, 866, lv denied 83 NY2d 753). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.) Present — Green, J. P., Lawton, Pigott, Jr., Scudder and Callahan, JJ.