Soto v. New York State Department of Correctional Services

275 A.D.2d 851, 713 N.Y.S.2d 886, 2000 N.Y. App. Div. LEXIS 9351

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 21, 2000
• Status: Published

Opinion

—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Franklin County) to review a determination of respondent Superintendent of Bare Hill Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was found guilty of violating prison disciplinary rules prohibiting assault of another inmate, fighting and violent conduct. Contrary to petitioner’s contention, the misbehavior report and the inconsistent inmate testimony at the hearing provide substantial evidence of petitioner’s guilt (see, Matter of Gebremariam v Goord, 273 AD2d 695; Matter of Pacheco v Dufrain, 251 AD2d 817). To the extent that petitioner’s testimony conflicted with the other evidence at the hearing, this created a credibility issue for resolution by the Hearing Officer (see, Matter of Ellis v Coombe, 253 AD2d 945).

We also reject petitioner’s contention that the medical record of the injured inmate should have been introduced at the hearing. Initially, we note that petitioner never requested this document nor objected to it not being introduced. Therefore, the issue is not preserved for our review (see, Matter of Mealer v Selsky, 268 AD2d 723). In any event, the medical report documented the injury the inmate received and is irrelevant to the charges at issue (see, Matter of Quiles v Goord, 271 AD2d 775; Matter of Marquez v Mann, 188 AD2d 956). Petitioner’s remaining contentions, to the extent that they have been preserved for our review, have been examined and found to be without merit.

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