Primo v. Goord

Appellate Division of the Supreme Court of New York

Primo v. Goord

266 A.D.2d 602, 697 N.Y.S.2d 750, 1999 N.Y. App. Div. LEXIS 11202

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

DecidedNovember 4, 1999

StatusPublished

Cited by8 cases

This text of 266 A.D.2d 602 (Primo v. Goord) 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

Primo v. Goord, 266 A.D.2d 602, 697 N.Y.S.2d 750, 1999 N.Y. App. Div. LEXIS 11202 (N.Y. Ct. App. 1999).

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Opinion

—Carpinello, J.

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 a prison disciplinary rule.

Petitioner, a prison inmate, was found guilty of violating the prison disciplinary rule which prohibits assaulting other inmates. Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding challenging the determination of his guilt on procedural and substantial evidence grounds. Supreme Court transferred the matter to this Court and we confirm.

Initially, we reject petitioner’s contention that the absence of a signature on his copy of the misbehavior report rendered it defective inasmuch as the correction officer who prepared and signed the original report sufficiently explained the missing signature at the disciplinary hearing (see, Matter of Ray v Coughlin, 226 AD2d 846). Additionally, petitioner has failed to demonstrate how he was prejudiced by this technical error (see, Matter of Moley v Selsky, 245 AD2d 588). Further, the copy of the misbehavior report provided to petitioner was sufficiently detailed to enable him to prepare a defense even in the absence of the names of other inmates involved in the [603]*603incident (see, Matter of Couch v Goord, 255 AD2d 720; Matter of S. v Coughlin, 172 AD2d 937, lv denied 78 NY2d 855).

Finally, the misbehavior report and the testimony of the correction officer who had authored it and who had investigated the incident provide substantial evidence of petitioner’s guilt, notwithstanding that the correction officer did not actually witness the assault (see, Matter of Bostic v Coughlin, 216 AD2d 766). Although the victim subsequently denied that petitioner assaulted him, this merely created a credibility issue for the Hearing Officer to resolve (see, Matter of Rodriguez v Coombe, 239 AD2d 854, lv dismissed 91 NY2d 907).

Petitioner’s remaining arguments, to the extent preserved for our review, are found to be lacking in merit.

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

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—Carpinello, J.

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 a prison disciplinary rule.

Petitioner, a prison inmate, was found guilty of violating the prison disciplinary rule which prohibits assaulting other inmates. Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding challenging the determination of his guilt on procedural and substantial evidence grounds. Supreme Court transferred the matter to this Court and we confirm.

Initially, we reject petitioner’s contention that the absence of a signature on his copy of the misbehavior report rendered it defective inasmuch as the correction officer who prepared and signed the original report sufficiently explained the missing signature at the disciplinary hearing (see, Matter of Ray v Coughlin, 226 AD2d 846). Additionally, petitioner has failed to demonstrate how he was prejudiced by this technical error (see, Matter of Moley v Selsky, 245 AD2d 588). Further, the copy of the misbehavior report provided to petitioner was sufficiently detailed to enable him to prepare a defense even in the absence of the names of other inmates involved in the [603]*603incident (see, Matter of Couch v Goord, 255 AD2d 720; Matter of S. v Coughlin, 172 AD2d 937, lv denied 78 NY2d 855).

Finally, the misbehavior report and the testimony of the correction officer who had authored it and who had investigated the incident provide substantial evidence of petitioner’s guilt, notwithstanding that the correction officer did not actually witness the assault (see, Matter of Bostic v Coughlin, 216 AD2d 766). Although the victim subsequently denied that petitioner assaulted him, this merely created a credibility issue for the Hearing Officer to resolve (see, Matter of Rodriguez v Coombe, 239 AD2d 854, lv dismissed 91 NY2d 907).

Petitioner’s remaining arguments, to the extent preserved for our review, are found to be lacking in merit.

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

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266 A.D.2d 602, 697 N.Y.S.2d 750, 1999 N.Y. App. Div. LEXIS 11202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/primo-v-goord-nyappdiv-1999.

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