Moretti v. Selsky

Appellate Division of the Supreme Court of New York

Moretti v. Selsky

46 A.D.3d 1049, 846 N.Y.S.2d 822

Appellate Division of the Supreme Court of the State of New York·Decided December 13, 2007·Published·Cited by 3 cases

Opinion

[1050] Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, an inmate, was charged in a misbehavior report with violating the prison disciplinary rule prohibiting illicit drug use. Following a tier III disciplinary hearing, he was found guilty as charged. Upon administrative review, the determination was affirmed with a modified penalty. This CPLR article 78 proceeding ensued.

We confirm. Substantial evidence consisting of the misbehavior report, positive urinalysis test results and related documentation and testimony adduced at the hearing supports the determination of guilt (see Matter of Crosby v Goord, 38 AD3d 1110 [2007]; Matter of Hoover v Goord, 38 AD3d 1069, 1070 [2007], lv denied 8 NY3d 816 [2007]). As for petitioner’s assertion that he was deprived of adequate employee assistance, any defects in the assistance provided to him were cured by the Hearing Officer at the time of the hearing (see Matter of Ellison v Goord, 274 AD2d 800, 801 [2000]). We have reviewed petitioner’s remaining contentions, including his claims that he was improperly denied the right to present evidence, there were deficiencies in the chain of custody and the Hearing Officer was biased, and find them to be unavailing.

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

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[1050] Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, an inmate, was charged in a misbehavior report with violating the prison disciplinary rule prohibiting illicit drug use. Following a tier III disciplinary hearing, he was found guilty as charged. Upon administrative review, the determination was affirmed with a modified penalty. This CPLR article 78 proceeding ensued.

We confirm. Substantial evidence consisting of the misbehavior report, positive urinalysis test results and related documentation and testimony adduced at the hearing supports the determination of guilt (see Matter of Crosby v Goord, 38 AD3d 1110 [2007]; Matter of Hoover v Goord, 38 AD3d 1069, 1070 [2007], lv denied 8 NY3d 816 [2007]). As for petitioner’s assertion that he was deprived of adequate employee assistance, any defects in the assistance provided to him were cured by the Hearing Officer at the time of the hearing (see Matter of Ellison v Goord, 274 AD2d 800, 801 [2000]). We have reviewed petitioner’s remaining contentions, including his claims that he was improperly denied the right to present evidence, there were deficiencies in the chain of custody and the Hearing Officer was biased, and find them to be unavailing.

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

Moretti v. Selsky, 46 A.D.3d 1049, 846 N.Y.S.2d 822 (N.Y. Ct. App. 2007).

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Opinion

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