Richardson v. Coombe

Appellate Division of the Supreme Court of New York

Richardson v. Coombe

231 A.D.2d 789, 647 N.Y.S.2d 577, 1996 N.Y. App. Div. LEXIS 9184

Appellate Division of the Supreme Court of the State of New York·Decided September 12, 1996·Published·Cited by 9 cases

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Washington County) to [790]*790review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner is an inmate at Great Meadow Correctional Facility in Washington County. As the result of an incident in which he was charged with exposing himself and masturbating in front of a nurse when she responded to his request for a sick call, petitioner was found guilty of harassment and exposing his private parts. Petitioner challenges this determination, arguing that it is not supported by substantial evidence and that the Hearing Officer was biased.

Initially, although the nurse who authored the misbehavior report mistakenly wrote down the wrong rule number concerning the charge of exposing private parts, we do not find that this requires annulment of the determination. Petitioner waived this claim by failing to raise it at the administrative hearing (see, Matter of McMillan v Selsky, 221 AD2d 785; Matter of Bodden v Coughlin, 217 AD2d 765). Nevertheless, were we to consider the merits, we would find this claim to be unpersuasive given that the misbehavior report adequately described the misconduct with which petitioner was charged, the error in rule number was corrected during the course of the hearing and petitioner failed to demonstrate that he was prejudiced in his defense by this error (see, Matter of Hight v Coughlin, 161 AD2d 1079). Upon reviewing the record, we find that the misbehavior report, combined with the testimony of the nurse, provide substantial evidence supporting the administrative determination. We have considered petitioner’s claim that the Hearing Officer was biased and find it to be unavailing.

Mikoll, J. P., Mercure, White, Spain and Carpinello, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Washington County) to [790]*790review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner is an inmate at Great Meadow Correctional Facility in Washington County. As the result of an incident in which he was charged with exposing himself and masturbating in front of a nurse when she responded to his request for a sick call, petitioner was found guilty of harassment and exposing his private parts. Petitioner challenges this determination, arguing that it is not supported by substantial evidence and that the Hearing Officer was biased.

Initially, although the nurse who authored the misbehavior report mistakenly wrote down the wrong rule number concerning the charge of exposing private parts, we do not find that this requires annulment of the determination. Petitioner waived this claim by failing to raise it at the administrative hearing (see, Matter of McMillan v Selsky, 221 AD2d 785; Matter of Bodden v Coughlin, 217 AD2d 765). Nevertheless, were we to consider the merits, we would find this claim to be unpersuasive given that the misbehavior report adequately described the misconduct with which petitioner was charged, the error in rule number was corrected during the course of the hearing and petitioner failed to demonstrate that he was prejudiced in his defense by this error (see, Matter of Hight v Coughlin, 161 AD2d 1079). Upon reviewing the record, we find that the misbehavior report, combined with the testimony of the nurse, provide substantial evidence supporting the administrative determination. We have considered petitioner’s claim that the Hearing Officer was biased and find it to be unavailing.

Mikoll, J. P., Mercure, White, Spain and Carpinello, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Richardson v. Coombe, 231 A.D.2d 789, 647 N.Y.S.2d 577, 1996 N.Y. App. Div. LEXIS 9184 (N.Y. Ct. App. 1996).

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