Patterson v. Kelly

Appellate Division of the Supreme Court of New York

Patterson v. Kelly

152 A.D.2d 1012, 544 N.Y.S.2d 737, 1989 N.Y. App. Div. LEXIS 9989

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

DecidedJuly 12, 1989

StatusPublished

This text of 152 A.D.2d 1012 (Patterson v. Kelly) 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

Patterson v. Kelly, 152 A.D.2d 1012, 544 N.Y.S.2d 737, 1989 N.Y. App. Div. LEXIS 9989 (N.Y. Ct. App. 1989).

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Opinion

Judgment unanimously vacated, determination confirmed and petition dismissed. Memorandum: The court erred in failing to transfer the proceeding to this court (see, CPLR 7804 [g]; 7803 [4]), but we review the issues as if the proceeding had been properly transferred in the first instance (see, Matter of Melvin v Kelly, 126 AD2d 956, Iv denied 69 NY2d 609; Matter of Curl v Kelly, 125 AD2d 948).

The determination was based on the written report and testimony of the charging officer. The Hearing Officer was entitled to credit this evidence even though petitioner presented inmate witnesses whose testimony differed from that of the charging officer. The determination was supported by [1013]*1013substantial evidence and must be confirmed (see, People ex rel. Vega v Smith, 66 NY2d 130; Matter of Melvin v Kelly, supra).

Petitioner’s remaining argument, that the penalty imposed was improper in that the Hearing Officer recommended a job reassignment, is not properly before us. The Hearing Officer merely expressed an advisory opinion. Petitioner has no statutory, regulatory or precedential right to a specific prison job (see, Matter of Cooper v Smith, 99 AD2d 644, affd 63 NY2d 615). (Appeal from judgment of Supreme Court, Wyoming County, Dadd, J. — art 78.) Present — Dillon, P. J., Callahan, Green, Balio and Lawton, JJ.

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Judgment unanimously vacated, determination confirmed and petition dismissed. Memorandum: The court erred in failing to transfer the proceeding to this court (see, CPLR 7804 [g]; 7803 [4]), but we review the issues as if the proceeding had been properly transferred in the first instance (see, Matter of Melvin v Kelly, 126 AD2d 956, Iv denied 69 NY2d 609; Matter of Curl v Kelly, 125 AD2d 948).

The determination was based on the written report and testimony of the charging officer. The Hearing Officer was entitled to credit this evidence even though petitioner presented inmate witnesses whose testimony differed from that of the charging officer. The determination was supported by [1013]*1013substantial evidence and must be confirmed (see, People ex rel. Vega v Smith, 66 NY2d 130; Matter of Melvin v Kelly, supra).

Petitioner’s remaining argument, that the penalty imposed was improper in that the Hearing Officer recommended a job reassignment, is not properly before us. The Hearing Officer merely expressed an advisory opinion. Petitioner has no statutory, regulatory or precedential right to a specific prison job (see, Matter of Cooper v Smith, 99 AD2d 644, affd 63 NY2d 615). (Appeal from judgment of Supreme Court, Wyoming County, Dadd, J. — art 78.) Present — Dillon, P. J., Callahan, Green, Balio and Lawton, JJ.

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Bluebook (online)

152 A.D.2d 1012, 544 N.Y.S.2d 737, 1989 N.Y. App. Div. LEXIS 9989, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patterson-v-kelly-nyappdiv-1989.

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