Montgomery v. Goord

297 A.D.2d 870, 746 N.Y.2d 922, 746 N.Y.S.2d 922, 2002 N.Y. App. Div. LEXIS 8435

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 19, 2002
• Status: Published

Opinion

Petitioner was found guilty of violating the prison disciplinary rules prohibiting violent conduct, assault on an inmate and possession of a weapon.

* The misbehavior report relates that petitioner was observed making slashing motions in the direction of another inmate who appeared to be trying to elude him. When petitioner ignored orders to desist, he was forcibly subdued and manacled. A homemade weapon, in the form of a five-inch-long piece of sharpened metal, was found on the floor near petitioner. Both inmates were examined at the facility’s infirmary where petitioner’s victim was found to have sustained wounds consistent with having been slashed with a sharp instrument.

Contrary to petitioner’s assertions, we find that substantial evidence supports the determination finding him guilty of the charged misconduct in the form of the detailed misbehavior report, the use-of-force report, the unusual incident report, a photograph of the weapon that was recovered at the scene and memoranda submitted by three correction officers who witnessed the events in question (see Matter of Krivoi v Selsky, 284 AD2d 677; Matter of Mojica v Goord, 262 AD2d 1002, Iv denied 94 NY2d 752, cert denied 529 US 1039). As substantial evidence supports the determination, it will not be disturbed.

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

Petitioner pleaded guilty to charges of fighting and refusing to obey a direct order; hence, that part of the determination finding him guilty of those charges is not in contention.