Rivera v. McGinnis

Appellate Division of the Supreme Court of New York

Rivera v. McGinnis

290 A.D.2d 800, 735 N.Y.S.2d 899, 2002 N.Y. App. Div. LEXIS 389

Appellate Division of the Supreme Court of the State of New York·Decided January 17, 2002·Published·Cited by 4 cases

Opinion

— Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner challenges a determination finding him guilty of violating the prison disciplinary rule prohibiting lewd exposure after a facility nurse witnessed petitioner masturbating in his cell. Contrary to petitioner’s contention, the misbehavior report, authored by the nurse who witnessed the incident, and petitioner’s own admissions regarding his conduct constitute substantial evidence supporting the determination of guilt (see, Matter of Green v Goord, 284 AD2d 677; Matter of McMillian v Selsky, 268 AD2d 936). Petitioner’s assertion that the incident was unintentional as he was unaware that the nurse was still making her rounds presented a credibility issue which the [801]*801Hearing Officer resolved against him (see, Matter of McMillian v Selsky, supra).

Cardona, P.J., Mercare, Spain, Carpinello and Lahtinen, 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 Chemung County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner challenges a determination finding him guilty of violating the prison disciplinary rule prohibiting lewd exposure after a facility nurse witnessed petitioner masturbating in his cell. Contrary to petitioner’s contention, the misbehavior report, authored by the nurse who witnessed the incident, and petitioner’s own admissions regarding his conduct constitute substantial evidence supporting the determination of guilt (see, Matter of Green v Goord, 284 AD2d 677; Matter of McMillian v Selsky, 268 AD2d 936). Petitioner’s assertion that the incident was unintentional as he was unaware that the nurse was still making her rounds presented a credibility issue which the [801]*801Hearing Officer resolved against him (see, Matter of McMillian v Selsky, supra).

Cardona, P.J., Mercare, Spain, Carpinello and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Rivera v. McGinnis, 290 A.D.2d 800, 735 N.Y.S.2d 899, 2002 N.Y. App. Div. LEXIS 389 (N.Y. Ct. App. 2002).

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