Midlarsky v. Kelly

Appellate Division of the Supreme Court of New York

Midlarsky v. Kelly

145 A.D.2d 992, 536 N.Y.S.2d 358, 1988 N.Y. App. Div. LEXIS 14170

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

DecidedDecember 23, 1988

StatusPublished

Cited by2 cases

This text of 145 A.D.2d 992 (Midlarsky v. Kelly) 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

Midlarsky v. Kelly, 145 A.D.2d 992, 536 N.Y.S.2d 358, 1988 N.Y. App. Div. LEXIS 14170 (N.Y. Ct. App. 1988).

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Opinion

— Determination unanimously annulled on the law and petition granted, in accordance with the following memorandum: In a misbehavior report filed by C. O. [993]*993Moscicki, petitioner was charged with refusing to obey a direct order in violation of prison rule 106.10. At his Tier II hearing, petitioner pleaded "not guilty” and asserted that he did not hear the order when it was given. Another inmate also testified that he did not hear the order. Relying on the misbehavior report, the Hearing Officer found petitioner guilty as charged. There was, however, no express finding that petitioner heard the order given. Instead, the Hearing Officer merely stated that "noise and confusion are not valid excuses for non-compliance.” That finding bore no meaningful relationship to the issue presented to the Hearing Officer. Absent a finding that petitioner heard the order, it could not be determined that he refused to obey it.

The determination must be annulled and all references to the proceedings must be expunged from petitioner’s institutional record (see, Matter Hartje v Coughlin, 70 NY2d 866). (Article 78 proceeding transferred by order of Supreme Court, Wyoming County, Dadd, J.) Present — Dillon, P. J., Callahan, Denman, Green and Lawton, JJ.

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— Determination unanimously annulled on the law and petition granted, in accordance with the following memorandum: In a misbehavior report filed by C. O. [993]*993Moscicki, petitioner was charged with refusing to obey a direct order in violation of prison rule 106.10. At his Tier II hearing, petitioner pleaded "not guilty” and asserted that he did not hear the order when it was given. Another inmate also testified that he did not hear the order. Relying on the misbehavior report, the Hearing Officer found petitioner guilty as charged. There was, however, no express finding that petitioner heard the order given. Instead, the Hearing Officer merely stated that "noise and confusion are not valid excuses for non-compliance.” That finding bore no meaningful relationship to the issue presented to the Hearing Officer. Absent a finding that petitioner heard the order, it could not be determined that he refused to obey it.

The determination must be annulled and all references to the proceedings must be expunged from petitioner’s institutional record (see, Matter Hartje v Coughlin, 70 NY2d 866). (Article 78 proceeding transferred by order of Supreme Court, Wyoming County, Dadd, J.) Present — Dillon, P. J., Callahan, Denman, Green and Lawton, JJ.

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Bluebook (online)

145 A.D.2d 992, 536 N.Y.S.2d 358, 1988 N.Y. App. Div. LEXIS 14170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/midlarsky-v-kelly-nyappdiv-1988.

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