McDowell v. Coughlin

222 A.D.2d 915, 635 N.Y.S.2d 760, 1995 N.Y. App. Div. LEXIS 13337

Opinion

—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Greene County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

As the result of the discovery of a razor blade in petitioner’s cell, he was found guilty of violating a prison disciplinary rule prohibiting inmates from possessing a weapon. In support of his challenge to this determination, petitioner contends that the misbehavior report did not adequately apprise him of the charges against him and that he was improperly denied the right to be present during the search of his cell. Contrary to petitioner’s first claim, it is evident that the correction officer who prepared the report mistakenly dated it October 13, 1994, instead of October 18, 1994, which was the date of the incident. The description of the incident contained in the misbehavior report clearly stated that it occurred on October 18,1994. Accordingly, we find that the misbehavior report sufficiently apprised petitioner of the charges against him. We further find that this report, combined with the testimony of the correction officer who prepared it, constitutes substantial evidence supporting the administrative determination. Lastly, we have considered petitioner’s claim that he was improperly denied the right to be present during the search and find that, because he failed to raise it at the Superintendent’s hearing, he has failed to preserve it for our review.

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