McGrue v. Selsky

Appellate Division of the Supreme Court of New York

McGrue v. Selsky

236 A.D.2d 666, 653 N.Y.S.2d 719, 1997 N.Y. App. Div. LEXIS 1104

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

DecidedFebruary 6, 1997

StatusPublished

Cited by3 cases

This text of 236 A.D.2d 666 (McGrue 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

McGrue v. Selsky, 236 A.D.2d 666, 653 N.Y.S.2d 719, 1997 N.Y. App. Div. LEXIS 1104 (N.Y. Ct. App. 1997).

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Opinion

Yesawich Jr., J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in St. Lawrence County) to review a determination of respondent Director of Special Housing Unit, Department of Correctional Services, which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, a prison inmate, was found guilty, after a hearing, of assaulting another inmate. He challenges this determination arguing, inter alia, that it is not supported by substantial evidence, that he was denied the right to call certain witnesses, and that the Hearing Officer was biased.

Initially, the misbehavior report, together with the testimony of the correction officer who prepared it and that of another correction officer who was involved in investigating the incident, provide substantial evidence supporting the determination. Both officers stated that the victim of the assault identified petitioner as one of his assailants. Although petitioner claimed that he was playing basketball and was not involved in the incident, his testimony merely presented a question of credibility for the Hearing Officer to resolve (see, Matter of Young v Coombe, 227 AD2d 799, 801; Matter of Ayala v Coombe, 227 AD2d 752, 753).

We also reject petitioner’s claim that he was denied the right to have certain witnesses testify at the hearing. While petitioner argues that he was denied the right to elicit the victim’s testimony, the record discloses that petitioner never formally requested the victim as a witness, and that those witnesses he did request, who were available to testify, were indeed called and examined at the hearing. Moreover, the hearing transcript reveals that the Hearing Officer conducted the proceeding in a fair and impartial manner (see, Matter of Ruffin v Coombe, 233 AD2d 729; Matter of McCoy v Leonardo, 175 AD2d 358, 359). We have considered petitioner’s remaining contentions and find them either unpreserved for our review or lacking in merit.

Cardona, P. J., Mercure, White and Peters, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Yesawich Jr., J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in St. Lawrence County) to review a determination of respondent Director of Special Housing Unit, Department of Correctional Services, which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, a prison inmate, was found guilty, after a hearing, of assaulting another inmate. He challenges this determination arguing, inter alia, that it is not supported by substantial evidence, that he was denied the right to call certain witnesses, and that the Hearing Officer was biased.

Initially, the misbehavior report, together with the testimony of the correction officer who prepared it and that of another correction officer who was involved in investigating the incident, provide substantial evidence supporting the determination. Both officers stated that the victim of the assault identified petitioner as one of his assailants. Although petitioner claimed that he was playing basketball and was not involved in the incident, his testimony merely presented a question of credibility for the Hearing Officer to resolve (see, Matter of Young v Coombe, 227 AD2d 799, 801; Matter of Ayala v Coombe, 227 AD2d 752, 753).

We also reject petitioner’s claim that he was denied the right to have certain witnesses testify at the hearing. While petitioner argues that he was denied the right to elicit the victim’s testimony, the record discloses that petitioner never formally requested the victim as a witness, and that those witnesses he did request, who were available to testify, were indeed called and examined at the hearing. Moreover, the hearing transcript reveals that the Hearing Officer conducted the proceeding in a fair and impartial manner (see, Matter of Ruffin v Coombe, 233 AD2d 729; Matter of McCoy v Leonardo, 175 AD2d 358, 359). We have considered petitioner’s remaining contentions and find them either unpreserved for our review or lacking in merit.

Cardona, P. J., Mercure, White and Peters, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Bluebook (online)

236 A.D.2d 666, 653 N.Y.S.2d 719, 1997 N.Y. App. Div. LEXIS 1104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgrue-v-selsky-nyappdiv-1997.

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