Mojica v. Goord

262 A.D.2d 1002, 693 N.Y.S.2d 365, 1999 N.Y. App. Div. LEXIS 7195

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 18, 1999
• Status: Published

Opinion

—Determination unanimously confirmed without costs and petition dismissed. Memorandum: Following a Tier III hearing, petitioner was found guilty of assault on another inmate (7 NYCRR 270.2 [B] [1] [i]) and possession of a weapon (7 NYCRR 270.2 [B] [14] [i]). The misbehavior report constitutes substantial evidence supporting the determination of guilt on both charges (see, People ex rel. Vega v Smith, 66 NY2d 130, 139). According to the misbehavior report, petitioner admitted to a correction officer that he had possessed a razor blade, but had dropped it in the yard. When petitioner was frisked, a razor blade sheath was recovered from his rectum. The recovery of the sheath supports the inference that petitioner had possessed a razor blade. With respect to the assault charge, petitioner contends that he did not cause physical injury to the other inmate and did not initiate the fight. The regulation provides, however, that inmates “shall not assault, inflict or attempt to inflict bodily harm upon any other inmate” (7 NYCRR 270.2 [B] [1] [i]). It is not required that the victim suffer physical injury or that the assailant initiate the fight. The misbehavior report states that the correction officer observed petitioner approach an inmate and strike him with his fist and thus constitutes substantial evidence that petitioner inflicted or intended to inflict bodily harm on another inmate. (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.) Present — Denman, P. J., Green, Hayes, Scudder and Balio, JJ.