Swan v. Williams

Appellate Division of the Supreme Court of New York

Swan v. Williams

255 A.D.2d 931, 681 N.Y.S.2d 923, 1998 N.Y. App. Div. LEXIS 12160

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

DecidedNovember 13, 1998

StatusPublished

This text of 255 A.D.2d 931 (Swan v. Williams) 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

Swan v. Williams, 255 A.D.2d 931, 681 N.Y.S.2d 923, 1998 N.Y. App. Div. LEXIS 12160 (N.Y. Ct. App. 1998).

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Opinion

—Determination unanimously confirmed without costs and petition dismissed. Memorandum: The determination that petitioner violated inmate rule 104.13 (7 NYCRR 270.2 [B] [5] [iv] [creating a disturbance]) is supported by substantial evidence (see, People ex rel. Vega v Smith, 66 NY2d 130, 139). Petitioner’s testimony raised an issue of credibility for the Hearing Officer to resolve (see, Matter of Foster v Coughlin, 76 NY2d 964, 966). Petitioner failed to demonstrate any prejudice resulting from the inadvertent failure to provide him with a copy of the misbehavior report containing the signature of the charging correction officer. The Hearing Officer’s copy of the report was complete, petitioner was given the missing information and petitioner was given several opportunities during the hearing to call the charging correction officer as a witness, which he declined to do. There is no merit to petitioner’s argument that the Hearing Officer was biased in the absence of proof in the record that the determination flowed from the alleged bias (see, Matter of Hooper v Goord, 247 AD2d 884; Matter of Dawes v Selsky, 242 AD2d 907). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Erie County, Burns, J.) Present — Pine, J. P., Wisner, Pigott, Jr., Callahan and Fallon, JJ.

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—Determination unanimously confirmed without costs and petition dismissed. Memorandum: The determination that petitioner violated inmate rule 104.13 (7 NYCRR 270.2 [B] [5] [iv] [creating a disturbance]) is supported by substantial evidence (see, People ex rel. Vega v Smith, 66 NY2d 130, 139). Petitioner’s testimony raised an issue of credibility for the Hearing Officer to resolve (see, Matter of Foster v Coughlin, 76 NY2d 964, 966). Petitioner failed to demonstrate any prejudice resulting from the inadvertent failure to provide him with a copy of the misbehavior report containing the signature of the charging correction officer. The Hearing Officer’s copy of the report was complete, petitioner was given the missing information and petitioner was given several opportunities during the hearing to call the charging correction officer as a witness, which he declined to do. There is no merit to petitioner’s argument that the Hearing Officer was biased in the absence of proof in the record that the determination flowed from the alleged bias (see, Matter of Hooper v Goord, 247 AD2d 884; Matter of Dawes v Selsky, 242 AD2d 907). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Erie County, Burns, J.) Present — Pine, J. P., Wisner, Pigott, Jr., Callahan and Fallon, JJ.

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Bluebook (online)

255 A.D.2d 931, 681 N.Y.S.2d 923, 1998 N.Y. App. Div. LEXIS 12160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swan-v-williams-nyappdiv-1998.

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