Pope v. Goord

307 A.D.2d 563, 762 N.Y.S.2d 297, 2003 N.Y. App. Div. LEXIS 8186

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 17, 2003
• Status: Published

Opinion

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 respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was found guilty of violating the prison disciplinary rules prohibiting violent conduct, assault on a staff member and refusing to obey a direct order. According to the misbehavior report, petitioner was signing paperwork under the supervision of three correction officers when he ignored an order to remain facing the table, turned around and struck one of the officers in the chest with his pen.

The requisite substantial evidence of petitioner’s guilt was presented in the form of the misbehavior report, written by the correction officer who was the victim of the assault and endorsed by the two officers who witnessed it, together with the consistent hearing testimony of all three officers (see Matter of Rushing v Goord, 298 AD2d 782 [2002]; Matter of Orr v Selsky, 290 AD2d 768, 769 [2002]). To the extent that petitioner’s description of the incident was at variance with that given by the correction officers, this presented an issue of credibility for resolution by the Hearing Officer (see Matter of Gonzalez v Goord, 303 AD2d 802, 803 [2003]). Petitioner’s assertion that various procedural errors deprived him of a fair hearing has been examined and found to be without merit.

Crew III, J.P., Peters, Carpinello, Mugglin and. Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.