Mealer v. Selsky

Appellate Division of the Supreme Court of New York

Mealer v. Selsky

290 A.D.2d 778, 736 N.Y.S.2d 203, 2002 N.Y. App. Div. LEXIS 438

Appellate Division of the Supreme Court of the State of New York·Decided January 17, 2002·Published·Cited by 4 cases

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 certain prison disciplinary rules.

Petitioner challenges a determination finding him guilty of engaging in a sexual act and violating facility visiting procedures. The misbehavior report relates that petitioner was observed fondling his wife’s breast during a facility visit, despite having been warned about excessive physical contact on several prior occasions. Contrary to petitioner’s contention, we find that the misbehavior report, together with the testimony [779] adduced at the hearing, constitute substantial evidence to support the determination of guilt (see, Matter of Murray v Goord, 263 AD2d 794; Matter of Garcia v Goord, 261 AD2d 674, lv dismissed 94 NY2d 834). Likewise, we reject petitioner’s assertion that the penalty of 60 days’ suspension of contact visitation was excessive (see, 7 NYCRR 200.5 [f]). Petitioner’s remaining arguments were not raised at the hearing and, thus, have not been preserved for our review (see, Matter of Stile v Goord, 285 AD2d 693).

Cardona, P.J., Crew III, Spain, Mugglin and Rose, 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 certain prison disciplinary rules.

Petitioner challenges a determination finding him guilty of engaging in a sexual act and violating facility visiting procedures. The misbehavior report relates that petitioner was observed fondling his wife’s breast during a facility visit, despite having been warned about excessive physical contact on several prior occasions. Contrary to petitioner’s contention, we find that the misbehavior report, together with the testimony [779] adduced at the hearing, constitute substantial evidence to support the determination of guilt (see, Matter of Murray v Goord, 263 AD2d 794; Matter of Garcia v Goord, 261 AD2d 674, lv dismissed 94 NY2d 834). Likewise, we reject petitioner’s assertion that the penalty of 60 days’ suspension of contact visitation was excessive (see, 7 NYCRR 200.5 [f]). Petitioner’s remaining arguments were not raised at the hearing and, thus, have not been preserved for our review (see, Matter of Stile v Goord, 285 AD2d 693).

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

Mealer v. Selsky, 290 A.D.2d 778, 736 N.Y.S.2d 203, 2002 N.Y. App. Div. LEXIS 438 (N.Y. Ct. App. 2002).

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Opinion

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