Rosario v. Goord

265 A.D.2d 714, 696 N.Y.S.2d 573, 1999 N.Y. App. Div. LEXIS 10703

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 21, 1999
• Status: Published

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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, challenges a determination finding him guilty of attempted escape and disobeying a direct order in violation of certain prison disciplinary rules. The misbehavior report and corroborating testimony of the correction officers involved in the incident, indicating that petitioner attempted to flee from the custody of two correction officers at the St. Lawrence County Court House and refused direct orders to stop, provide substantial evidence to support the determination of guilt (see, Matter of McMillian v Goord, 252 AD2d 645). Petitioner’s claim that the correction officers fabricated the story merely created a credibility issue for the Hearing Officer to resolve (see, Matter of Green v McGinnis, 256 AD2d 793, lv denied 93 NY2d 809).

Next, we reject petitioner’s contention that he was denied the right to present documentary evidence at the hearing inasmuch as the Hearing Officer advised petitioner that he was informed upon inquiry that no videotape of the incident existed (see, Matter of Wood v Selsky, 237 AD2d 843, 844). Finally, given the serious nature of the charges, we do not find the penalty imposed to be shocking to one’s sense of fairness.

Cardona, P. J., Mikoll, Crew III, Graffeo and Mugglin, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.