Moore v. Portuondo

Appellate Division of the Supreme Court of New York

Moore v. Portuondo

267 A.D.2d 537, 698 N.Y.S.2d 571, 1999 N.Y. App. Div. LEXIS 12450

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

DecidedDecember 2, 1999

StatusPublished

Cited by2 cases

This text of 267 A.D.2d 537 (Moore v. Portuondo) 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

Moore v. Portuondo, 267 A.D.2d 537, 698 N.Y.S.2d 571, 1999 N.Y. App. Div. LEXIS 12450 (N.Y. Ct. App. 1999).

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Opinion

—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

Following a tier II disciplinary hearing, petitioner, a prison inmate, was found guilty of violating the prison disciplinary rule that prohibits inmates from being out of place after he failed to leave the facility exercise yard with his cell block after a “go back” call. Petitioner’s guilt was affirmed upon administrative appeal and he then commenced this CPLR article 78 proceeding to challenge the determination. Contrary to petitioner’s argument, we find that the sufficiently detailed misbehavior report authored by the correction officer who witnessed the incident, combined with petitioner’s own statement at the hearing, provide substantial evidence of his guilt (see, Matter of Rivera v Goord, 245 AD2d 910). Given the proof in the record, we are unpersuaded by petitioner’s contention that the fact that the Hearing Officer found him not guilty of the charges of disobeying a direct order and violating movement regulations establishes that he also should have been found not guilty of being out of place. Petitioner’s remaining contentions have been examined and found to be similarly unpersuasive.

Yesawich Jr., J. P., Spain, Carpinello, Graffeo and Mugglin, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

Following a tier II disciplinary hearing, petitioner, a prison inmate, was found guilty of violating the prison disciplinary rule that prohibits inmates from being out of place after he failed to leave the facility exercise yard with his cell block after a “go back” call. Petitioner’s guilt was affirmed upon administrative appeal and he then commenced this CPLR article 78 proceeding to challenge the determination. Contrary to petitioner’s argument, we find that the sufficiently detailed misbehavior report authored by the correction officer who witnessed the incident, combined with petitioner’s own statement at the hearing, provide substantial evidence of his guilt (see, Matter of Rivera v Goord, 245 AD2d 910). Given the proof in the record, we are unpersuaded by petitioner’s contention that the fact that the Hearing Officer found him not guilty of the charges of disobeying a direct order and violating movement regulations establishes that he also should have been found not guilty of being out of place. Petitioner’s remaining contentions have been examined and found to be similarly unpersuasive.

Yesawich Jr., J. P., Spain, Carpinello, Graffeo and Mugglin, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Bluebook (online)

267 A.D.2d 537, 698 N.Y.S.2d 571, 1999 N.Y. App. Div. LEXIS 12450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-portuondo-nyappdiv-1999.

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