Mobley v. Dubray

Appellate Division of the Supreme Court of New York

Mobley v. Dubray

57 A.D.3d 1055, 868 N.Y.2d 386

Appellate Division of the Supreme Court of the State of New York·Decided December 4, 2008·Published·Cited by 2 cases

Opinion

[1056] A frisk search of petitioner recovered an 874-inch sharpened metal rod in his right sneaker. As a result, petitioner was charged in a misbehavior report with smuggling and possession of a weapon. Following a tier III disciplinary hearing, petitioner was found guilty of both charges. That determination was administratively affirmed, prompting petitioner to commence this CPLR article 78 proceeding seeking annulment.

We confirm. To the extent that petitioner challenges the determination of guilt on an evidentiary basis, the misbehavior report, together with the corroborating hearing testimony from the correction officer who found the weapon and authored the report, provide substantial evidence to support the determination (see Matter of Harvey v Woods, 53 AD3d 988, 988 [2008]). Regarding petitioner’s claim of hearing officer bias, it is neither substantiated by the record nor is there any indication that the determination flowed from any purported bias (see Matter of Jenkins v Selsky, 51 AD3d 1239, 1240 [2008]). Petitioner’s assertion that he was denied documentary and photographic evidence has been examined and found to be unavailing.

Cardona, P.J., Spain, Carpinello, Kane and Malone Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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[1056] A frisk search of petitioner recovered an 874-inch sharpened metal rod in his right sneaker. As a result, petitioner was charged in a misbehavior report with smuggling and possession of a weapon. Following a tier III disciplinary hearing, petitioner was found guilty of both charges. That determination was administratively affirmed, prompting petitioner to commence this CPLR article 78 proceeding seeking annulment.

We confirm. To the extent that petitioner challenges the determination of guilt on an evidentiary basis, the misbehavior report, together with the corroborating hearing testimony from the correction officer who found the weapon and authored the report, provide substantial evidence to support the determination (see Matter of Harvey v Woods, 53 AD3d 988, 988 [2008]). Regarding petitioner’s claim of hearing officer bias, it is neither substantiated by the record nor is there any indication that the determination flowed from any purported bias (see Matter of Jenkins v Selsky, 51 AD3d 1239, 1240 [2008]). Petitioner’s assertion that he was denied documentary and photographic evidence has been examined and found to be unavailing.

Cardona, P.J., Spain, Carpinello, Kane and Malone Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Mobley v. Dubray, 57 A.D.3d 1055, 868 N.Y.2d 386 (N.Y. Ct. App. 2008).

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Opinion

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