Ruggiero v. Coombe

Appellate Division of the Supreme Court of New York

Ruggiero v. Coombe

219 A.D.2d 844, 632 N.Y.S.2d 35, 1995 N.Y. App. Div. LEXIS 10921

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

DecidedSeptember 29, 1995

StatusPublished

Cited by1 cases

This text of 219 A.D.2d 844 (Ruggiero v. Coombe) 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

Ruggiero v. Coombe, 219 A.D.2d 844, 632 N.Y.S.2d 35, 1995 N.Y. App. Div. LEXIS 10921 (N.Y. Ct. App. 1995).

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Opinion

Determination unanimously confirmed without costs and petition dismissed. Memorandum: Petitioner was charged with violating various inmate rules arising out of an obscene phone call. The parole officer who had received the obscene phone call listened to a tape recording of petitioner’s voice and positively identified petitioner’s "distinctive voice”. That testimony, along with the misbehavior report that placed petitioner in the room from which the obscene phone call was made, constitutes substantial evidence supporting the determination of guilt. Petitioner’s reliance upon Matter of Grimmett v Riley (192 AD2d 831) is misplaced. In that case, there was no evidence "that one of the voices from the recorded telephone conversations was actually identified as [the] petitioner’s voice” (Matter of Grimmett v Riley, supra, at 831).

Petitioner did not raise the excessiveness of the penalty in his CPLR article 78 petition and, therefore, that issue is not properly before us. In any event, the penalty imposed is not so disproportionate as to be shocking to one’s sense of fairness. (CPLR art 78 Transferred Proceeding by Order of Supreme [845]*845Court, Erie County, Whelan, J.) Present — Denman, P. J., Law-ton, Wesley, Doerr and Balio, JJ.

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Determination unanimously confirmed without costs and petition dismissed. Memorandum: Petitioner was charged with violating various inmate rules arising out of an obscene phone call. The parole officer who had received the obscene phone call listened to a tape recording of petitioner’s voice and positively identified petitioner’s "distinctive voice”. That testimony, along with the misbehavior report that placed petitioner in the room from which the obscene phone call was made, constitutes substantial evidence supporting the determination of guilt. Petitioner’s reliance upon Matter of Grimmett v Riley (192 AD2d 831) is misplaced. In that case, there was no evidence "that one of the voices from the recorded telephone conversations was actually identified as [the] petitioner’s voice” (Matter of Grimmett v Riley, supra, at 831).

Petitioner did not raise the excessiveness of the penalty in his CPLR article 78 petition and, therefore, that issue is not properly before us. In any event, the penalty imposed is not so disproportionate as to be shocking to one’s sense of fairness. (CPLR art 78 Transferred Proceeding by Order of Supreme [845]*845Court, Erie County, Whelan, J.) Present — Denman, P. J., Law-ton, Wesley, Doerr and Balio, JJ.

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Bluebook (online)

219 A.D.2d 844, 632 N.Y.S.2d 35, 1995 N.Y. App. Div. LEXIS 10921, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ruggiero-v-coombe-nyappdiv-1995.

Opinion

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