McCants v. Selsky

Appellate Division of the Supreme Court of New York

McCants v. Selsky

305 A.D.2d 912, 758 N.Y.S.2d 865, 2003 N.Y. App. Div. LEXIS 5814

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

DecidedMay 22, 2003

StatusPublished

This text of 305 A.D.2d 912 (McCants v. Selsky) 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

McCants v. Selsky, 305 A.D.2d 912, 758 N.Y.S.2d 865, 2003 N.Y. App. Div. LEXIS 5814 (N.Y. Ct. App. 2003).

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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 two determinations of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was the subject of two misbehavior reports. The first charged him with refusing to obey a direct order based upon his failure to comply with a correction officer’s directive to pack up his property in preparation for being transported to a court appearance. Substantial evidence of petitioner’s guilt was presented at his disciplinary hearing in the form of the misbehavior report, prepared by the officer who issued the orders, and the concessions of guilt made by petitioner in the course of his hearing testimony (see Matter of Jackson v Portuando, 243 AD2d 805 [1997]). Petitioner’s assertions that his refusal was justified because there was nothing left in the cell for him to pack raised an issue of credibility for resolution by the Hearing Officer (see Matter of Austin v Goord, 295 AD2d 662 [2002]).

[913]*913In the second misbehavior report, petitioner was charged with refusing to obey a direct order, interference with a facility employee and harassment after he refused repeated orders to secure the door to his recreation pen and used a profanity to the correction officer who issued the orders. Petitioner pleaded guilty to the first two charges and was found guilty, following a hearing, of the charge of harassment based upon substantial evidence in the form of the detailed misbehavior report (see Matter of Oyekoya v Duncan, 284 AD2d 757 [2001], lv denied 97 NY2d 601 [2001]). Petitioner’s assertion that he was denied a fair hearing by various procedural errors has been reviewed and found to be meritless.

Crew III, J.P., Peters, Spain, Rose and Lahtinen, JJ., concur. Adjudged that the determinations are 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 two determinations of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was the subject of two misbehavior reports. The first charged him with refusing to obey a direct order based upon his failure to comply with a correction officer’s directive to pack up his property in preparation for being transported to a court appearance. Substantial evidence of petitioner’s guilt was presented at his disciplinary hearing in the form of the misbehavior report, prepared by the officer who issued the orders, and the concessions of guilt made by petitioner in the course of his hearing testimony (see Matter of Jackson v Portuando, 243 AD2d 805 [1997]). Petitioner’s assertions that his refusal was justified because there was nothing left in the cell for him to pack raised an issue of credibility for resolution by the Hearing Officer (see Matter of Austin v Goord, 295 AD2d 662 [2002]).

[913]*913In the second misbehavior report, petitioner was charged with refusing to obey a direct order, interference with a facility employee and harassment after he refused repeated orders to secure the door to his recreation pen and used a profanity to the correction officer who issued the orders. Petitioner pleaded guilty to the first two charges and was found guilty, following a hearing, of the charge of harassment based upon substantial evidence in the form of the detailed misbehavior report (see Matter of Oyekoya v Duncan, 284 AD2d 757 [2001], lv denied 97 NY2d 601 [2001]). Petitioner’s assertion that he was denied a fair hearing by various procedural errors has been reviewed and found to be meritless.

Crew III, J.P., Peters, Spain, Rose and Lahtinen, JJ., concur. Adjudged that the determinations are confirmed, without costs, and petition dismissed.

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Bluebook (online)

305 A.D.2d 912, 758 N.Y.S.2d 865, 2003 N.Y. App. Div. LEXIS 5814, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccants-v-selsky-nyappdiv-2003.

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