Rodriguez v. Selsky

Appellate Division of the Supreme Court of New York

Rodriguez v. Selsky

295 A.D.2d 710, 743 N.Y.S.2d 748, 2002 N.Y. App. Div. LEXIS 6120

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

DecidedJune 13, 2002

StatusPublished

This text of 295 A.D.2d 710 (Rodriguez v. Selsky) 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

Rodriguez v. Selsky, 295 A.D.2d 710, 743 N.Y.S.2d 748, 2002 N.Y. App. Div. LEXIS 6120 (N.Y. Ct. App. 2002).

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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 the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was found guilty of violating the prison disciplinary rule prohibiting fighting. The correction officer who authored the misbehavior report testified that he had observed petitioner fighting with two other inmates. As the officer approached the inmates, petitioner fled, but was soon found hiding in a nearby bathroom. The officer was able to identify petitioner by checking his identification card and file [711]*711photograph. Petitioner was taken to the infirmary where he was found to have sustained abrasions on his head and body and cuts and scrapes on his face and right hand.

We find that substantial evidence in the form of the misbehavior report, the testimony of the reporting officer who witnessed the charged misconduct and the inmate injury report, issued by the infirmary, supports the determination of petitioner’s guilt (see, Matter of Lunney v Selsky, 275 AD2d 820; Matter of Quintana v Selsky, 268 AD2d 624, 625). Petitioner’s testimony, in which he stated that he was present but did not participate in the fight and that his injuries were caused when the other inmates “trampled” him as he attempted to leave, raised issues of credibility for resolution by the Hearing Officer (see, Matter of Pena v Goord, 290 AD2d 624; Matter of Jiminez v Selsky, 274 AD2d 704, 705). The remaining contentions raised herein, including petitioner’s assertion of Hearing Officer bias, have been reviewed and found to be without merit.

Cardona P.J., Mercure, Crew III, Peters 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 Albany County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was found guilty of violating the prison disciplinary rule prohibiting fighting. The correction officer who authored the misbehavior report testified that he had observed petitioner fighting with two other inmates. As the officer approached the inmates, petitioner fled, but was soon found hiding in a nearby bathroom. The officer was able to identify petitioner by checking his identification card and file [711]*711photograph. Petitioner was taken to the infirmary where he was found to have sustained abrasions on his head and body and cuts and scrapes on his face and right hand.

We find that substantial evidence in the form of the misbehavior report, the testimony of the reporting officer who witnessed the charged misconduct and the inmate injury report, issued by the infirmary, supports the determination of petitioner’s guilt (see, Matter of Lunney v Selsky, 275 AD2d 820; Matter of Quintana v Selsky, 268 AD2d 624, 625). Petitioner’s testimony, in which he stated that he was present but did not participate in the fight and that his injuries were caused when the other inmates “trampled” him as he attempted to leave, raised issues of credibility for resolution by the Hearing Officer (see, Matter of Pena v Goord, 290 AD2d 624; Matter of Jiminez v Selsky, 274 AD2d 704, 705). The remaining contentions raised herein, including petitioner’s assertion of Hearing Officer bias, have been reviewed and found to be without merit.

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

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Bluebook (online)

295 A.D.2d 710, 743 N.Y.S.2d 748, 2002 N.Y. App. Div. LEXIS 6120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodriguez-v-selsky-nyappdiv-2002.

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