Mays v. Portuondo

287 A.D.2d 844, 731 N.Y.S.2d 277, 2001 N.Y. App. Div. LEXIS 9738

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 18, 2001
• Status: Published

Opinion

—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of respondent Superintendent of Shawangunk Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was found guilty of violating the prison disciplinary rules that prohibit refusing to obey a direct order and failing to comply with frisk procedures. Included in the evidence presented at the disciplinary hearing was the misbehavior report written by the correction officer directly involved in the incident, who related that petitioner was being pat frisked when he repeatedly refused orders to move his feet farther from the wall. The correction officer’s supervising sergeant testified that he had witnessed petitioner’s persistent refusals and that petitioner had also refused to comply with the sergeant’s directive to move his feet.

We find the misbehavior report and the sergeant’s testimony sufficient to constitute substantial evidence of petitioner’s guilt (see, Matter of Barnes v Goord, 279 AD2d 685). Petitioner is mistaken in his contention that the correction officer who authored the report was required to testify (see, Matter of Rodriguez v Senkowski, 202 AD2d 761, 762).

Petitioner’s assertions of Hearing Officer bias are not supported by the record nor has petitioner established that the outcome of the hearing flowed therefrom (see, Matter of Lawrence v Headley, 257 AD2d 837, 838). The remaining arguments made by petitioner have been reviewed and found to be without merit.

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