R. R. Roberts v. Selsky

255 A.D.2d 977, 681 N.Y.S.2d 714, 1998 N.Y. App. Div. LEXIS 12250

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 1998
• Status: Published

Opinion

—Determination unanimously confirmed without costs and petition dismissed. Memorandum: After a Tier III hearing, petitioner was found guilty of violating inmate rule 101.10 (7 NYCRR 270.2 [B] [2] [i] [inmates shall not engage in, encourage, solicit or attempt to force others to engage in sexual acts]). The misbehavior report constitutes substantial evidence supporting the determination (see, Matter of Parker v Coughlin, 211 AD2d 929; see also, People ex rel. Vega v Smith, 66 NY2d 130, 139). Petitioner’s explanation of the incident at the disciplinary hearing served only to present a credibility issue, which the Hearing Officer resolved in favor of the correction officer’s version of the incident (see, Matter of Foster v Coughlin, 76 NY2d 964, 966). Contrary to petitioner’s contention, the misbehavior report was not so discredited that it was insufficient to support the determination of guilt (cf., Matter of Horn v Coughlin, 198 AD2d 745).

We reject petitioner’s contention that intermittent gaps in the hearing transcript require annulment. “[T]he missing testimony ‘is neither material to the determination nor of such significance as to preclude meaningful review’ (Matter of Rodriguez v Coughlin, 167 AD2d 671)” (Matter of Torres v Coombe, 234 AD2d 710, 710-711).

The record does not support petitioner’s contention that the Hearing Officer was biased (see, Matter of Parker v Coughlin, supra; Matter of Martinez v Scully, 194 AD2d 679). Petitioner’s contention that the rules fail to state the range of disciplinary sanctions lacks merit (see, Matter of Coleman v Kelly, 72 NY2d 850, 852). The penalty imposed is not excessive. (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Cayuga County, Corning, J.) Present — Green, J. P., Pine, Wisner, Balio and Boehm, JJ.