Melvin v. Smith

Appellate Division of the Supreme Court of New York

Melvin v. Smith

143 A.D.2d 525, 533 N.Y.S.2d 158, 1988 N.Y. App. Div. LEXIS 10702

Appellate Division of the Supreme Court of the State of New York·Decided September 27, 1988·Published

Opinion

Judgment vacated on the law, determination unanimously confirmed and petition dismissed. Memorandum: Petitioner appeals from a judgment which dismissed his CPLR article 78 proceeding challenging the determination of a Tier II disciplinary hearing that he violated two inmate rules. Since the issue raised is whether the determination is supported by substantial evidence, Special Term should have transferred the matter to this court (CPLR 7804 [g]). The matter now being before us, however, we may decide the issue de novo (see, Matter of Smith v Coughlin, 111 AD2d 503). Petitioner’s admission to one of the charges and the correction officer’s misbehavior report with respect to the other constitute substantial evidence in support of the determination (People ex rel. Vega v Smith, 66 NY2d 130). (Appeal from judgment of Supreme Court, Wyoming County, Dadd, J. — art 78.) Present — Denman, J. P., Green, Pine, Lawton and Davis, JJ.

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Judgment vacated on the law, determination unanimously confirmed and petition dismissed. Memorandum: Petitioner appeals from a judgment which dismissed his CPLR article 78 proceeding challenging the determination of a Tier II disciplinary hearing that he violated two inmate rules. Since the issue raised is whether the determination is supported by substantial evidence, Special Term should have transferred the matter to this court (CPLR 7804 [g]). The matter now being before us, however, we may decide the issue de novo (see, Matter of Smith v Coughlin, 111 AD2d 503). Petitioner’s admission to one of the charges and the correction officer’s misbehavior report with respect to the other constitute substantial evidence in support of the determination (People ex rel. Vega v Smith, 66 NY2d 130). (Appeal from judgment of Supreme Court, Wyoming County, Dadd, J. — art 78.) Present — Denman, J. P., Green, Pine, Lawton and Davis, JJ.

Melvin v. Smith, 143 A.D.2d 525, 533 N.Y.S.2d 158, 1988 N.Y. App. Div. LEXIS 10702 (N.Y. Ct. App. 1988).

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143 A.D.2d 525 (Melvin v. Smith) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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