McCorkle v. Selsky

Appellate Division of the Supreme Court of New York

McCorkle v. Selsky

264 A.D.2d 890, 696 N.Y.S.2d 85, 1999 N.Y. App. Div. LEXIS 9112

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

DecidedSeptember 16, 1999

StatusPublished

Cited by8 cases

This text of 264 A.D.2d 890 (McCorkle 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

McCorkle v. Selsky, 264 A.D.2d 890, 696 N.Y.S.2d 85, 1999 N.Y. App. Div. LEXIS 9112 (N.Y. Ct. App. 1999).

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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 a determination of the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Following a tier III disciplinary hearing concerning two misbehavior reports, petitioner, a prison inmate, was found guilty of smuggling and possession of weapons in violation of prison disciplinary rules. According to the first misbehavior report, petitioner was observed carrying a pillowcase full of items. The pillowcase was found to contain food that had been taken from the mess hall and a search of petitioner’s person produced a metal shank concealed in his pocket. The second misbehavior report was written after a correction officer found a folded can top fashioned into a weapon hidden in petitioner’s locker. Petitioner’s administrative appeal was unsuccessful, prompting him to commence this CPLR article 78 proceeding to challenge the determination of guilt. We confirm.

[891]*891In our view, the detailed misbehavior reports, combined with petitioner’s own statements, provide substantial evidence of his guilt (see, Matter of Foster v Coughlin, 76 NY2d 964, 966). Although petitioner offered exculpatory testimony, this merely raised a credibility issue for the Hearing Officer to resolve (see, Matter of Gonzalez v Selsky, 253 AD2d 940).

We have examined petitioner’s allegations of Hearing Officer bias and find them to be unsubstantiated in the record. In any event, petitioner has failed to demonstrate that the outcome of the hearing flowed from the alleged bias (see, Matter of Di Rose v Coombe, 233 AD2d 799). Similarly, although petitioner maintains that his due process rights were violated because of a delay in providing him with the result of his administrative appeal (see, 7 NYCRR 253.8), we note that any delay did not cause him “substantial prejudice” (Matter of Reynoso v Senkowski, 210 AD2d 709, lv denied 85 NY2d 805) in that petitioner timely commenced this proceeding. Petitioner’s remaining contentions, including his claim that he was denied the opportunity to call witnesses on his behalf, have been reviewed and found to be lacking in merit.

Mercure, J. P., Peters, Spain, Carpinello and Graffeo, JJ., concur. Adjudged that the determination is 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 a determination of the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Following a tier III disciplinary hearing concerning two misbehavior reports, petitioner, a prison inmate, was found guilty of smuggling and possession of weapons in violation of prison disciplinary rules. According to the first misbehavior report, petitioner was observed carrying a pillowcase full of items. The pillowcase was found to contain food that had been taken from the mess hall and a search of petitioner’s person produced a metal shank concealed in his pocket. The second misbehavior report was written after a correction officer found a folded can top fashioned into a weapon hidden in petitioner’s locker. Petitioner’s administrative appeal was unsuccessful, prompting him to commence this CPLR article 78 proceeding to challenge the determination of guilt. We confirm.

[891]*891In our view, the detailed misbehavior reports, combined with petitioner’s own statements, provide substantial evidence of his guilt (see, Matter of Foster v Coughlin, 76 NY2d 964, 966). Although petitioner offered exculpatory testimony, this merely raised a credibility issue for the Hearing Officer to resolve (see, Matter of Gonzalez v Selsky, 253 AD2d 940).

We have examined petitioner’s allegations of Hearing Officer bias and find them to be unsubstantiated in the record. In any event, petitioner has failed to demonstrate that the outcome of the hearing flowed from the alleged bias (see, Matter of Di Rose v Coombe, 233 AD2d 799). Similarly, although petitioner maintains that his due process rights were violated because of a delay in providing him with the result of his administrative appeal (see, 7 NYCRR 253.8), we note that any delay did not cause him “substantial prejudice” (Matter of Reynoso v Senkowski, 210 AD2d 709, lv denied 85 NY2d 805) in that petitioner timely commenced this proceeding. Petitioner’s remaining contentions, including his claim that he was denied the opportunity to call witnesses on his behalf, have been reviewed and found to be lacking in merit.

Mercure, J. P., Peters, Spain, Carpinello and Graffeo, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Bluebook (online)

264 A.D.2d 890, 696 N.Y.S.2d 85, 1999 N.Y. App. Div. LEXIS 9112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccorkle-v-selsky-nyappdiv-1999.

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