Summer v. Kelly

Appellate Division of the Supreme Court of New York

Summer v. Kelly

139 A.D.2d 972, 527 N.Y.S.2d 997, 1988 N.Y. App. Div. LEXIS 4173

Appellate Division of the Supreme Court of the State of New York·Decided April 8, 1988·Published·Cited by 2 cases

Opinion

— Determination unanimously confirmed and petition dismissed. Memorandum: Petitioner’s contention that the Hearing Officer’s decision was not supported by substantial evidence is without merit; whether petitioner was the inmate who assaulted the correction officer was a matter of credibility for the Hearing Officer’s determination (see, People ex rel. Vega v Smith, 66 NY2d 130, 139; Matter of Curl v Kelly, 125 AD2d 948). Further, there is no merit to petitioner’s claim that his due process rights were violated by the failure to notify him of the possible range of penalties that could be imposed against him (Matter of Coleman v Kelly, 130 AD2d 976, appeal dismissed and lv granted 70 NY2d 733), nor do we find petitioner’s penalty excessive in view of the serious nature of the offense (see, Matter of Pell v Board of Educ., 34 NY2d 222). (Article 78 proceeding transferred by order of Supreme Court, Wyoming County, Dadd, J.) Present — Doerr, J. P., Denman, Boomer, Pine and Davis, JJ.

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— Determination unanimously confirmed and petition dismissed. Memorandum: Petitioner’s contention that the Hearing Officer’s decision was not supported by substantial evidence is without merit; whether petitioner was the inmate who assaulted the correction officer was a matter of credibility for the Hearing Officer’s determination (see, People ex rel. Vega v Smith, 66 NY2d 130, 139; Matter of Curl v Kelly, 125 AD2d 948). Further, there is no merit to petitioner’s claim that his due process rights were violated by the failure to notify him of the possible range of penalties that could be imposed against him (Matter of Coleman v Kelly, 130 AD2d 976, appeal dismissed and lv granted 70 NY2d 733), nor do we find petitioner’s penalty excessive in view of the serious nature of the offense (see, Matter of Pell v Board of Educ., 34 NY2d 222). (Article 78 proceeding transferred by order of Supreme Court, Wyoming County, Dadd, J.) Present — Doerr, J. P., Denman, Boomer, Pine and Davis, JJ.

Summer v. Kelly, 139 A.D.2d 972, 527 N.Y.S.2d 997, 1988 N.Y. App. Div. LEXIS 4173 (N.Y. Ct. App. 1988).

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Opinion

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