Toro v. Coughlin

Appellate Division of the Supreme Court of New York

Toro v. Coughlin

143 A.D.2d 489, 532 N.Y.S.2d 605, 1988 N.Y. App. Div. LEXIS 9260

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

DecidedSeptember 29, 1988

StatusPublished

Cited by1 cases

This text of 143 A.D.2d 489 (Toro v. Coughlin) 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

Toro v. Coughlin, 143 A.D.2d 489, 532 N.Y.S.2d 605, 1988 N.Y. App. Div. LEXIS 9260 (N.Y. Ct. App. 1988).

Pincite

Opinion

Mahoney, P. J.

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Clinton County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was an inmate at Clinton Correctional Facility in Clinton County when, on March 12, 1987, he was administratively charged with possession of a weapon. At a Superintendent’s proceeding, a correction officer testified that he observed petitioner on March 11, 1987 place something in a stone wall in the facility’s north yard and then put a red brick in the wall to conceal the object. Petitioner then left the area and no other inmates went into it until it was closed. The next morning, the correction officer searched the wall and found three homemade knives behind the red brick in the wall. The officer testified that he did not search the wall immediately because petitioner had not appeared to be nervous or jittery when he hid the objects in the wall. The Hearing Officer credited such testimony and found petitioner guilty. Such determination was administratively affirmed. Petitioner commenced this CPLR article 78 proceeding challenging the determination and the proceeding has been transferred to this court for disposition.

Since the correction officer’s testimony, if believes, provides substantial evidence in support of the determination, it must be confirmed. Unlike Matter of Trudo v LeFevre (122 AD2d 319), there was evidence here that no one had access to the wall in the yard after petitioner was observed to place something in it and before the correction officer searched it. Finally, the delay by the officer in searching the wall simply goes to credibility, a matter for the agency to resolve (see, Matter of Ennis v Coughlin, 141 AD2d 933).

Determination confirmed, and petition dismissed, without costs. Mahoney, P. J., Yesawich, Jr., Levine, Harvey and Mercure, JJ., concur.

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Mahoney, P. J.

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Clinton County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was an inmate at Clinton Correctional Facility in Clinton County when, on March 12, 1987, he was administratively charged with possession of a weapon. At a Superintendent’s proceeding, a correction officer testified that he observed petitioner on March 11, 1987 place something in a stone wall in the facility’s north yard and then put a red brick in the wall to conceal the object. Petitioner then left the area and no other inmates went into it until it was closed. The next morning, the correction officer searched the wall and found three homemade knives behind the red brick in the wall. The officer testified that he did not search the wall immediately because petitioner had not appeared to be nervous or jittery when he hid the objects in the wall. The Hearing Officer credited such testimony and found petitioner guilty. Such determination was administratively affirmed. Petitioner commenced this CPLR article 78 proceeding challenging the determination and the proceeding has been transferred to this court for disposition.

Since the correction officer’s testimony, if believes, provides substantial evidence in support of the determination, it must be confirmed. Unlike Matter of Trudo v LeFevre (122 AD2d 319), there was evidence here that no one had access to the wall in the yard after petitioner was observed to place something in it and before the correction officer searched it. Finally, the delay by the officer in searching the wall simply goes to credibility, a matter for the agency to resolve (see, Matter of Ennis v Coughlin, 141 AD2d 933).

Determination confirmed, and petition dismissed, without costs. Mahoney, P. J., Yesawich, Jr., Levine, Harvey and Mercure, JJ., concur.

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Bluebook (online)

143 A.D.2d 489, 532 N.Y.S.2d 605, 1988 N.Y. App. Div. LEXIS 9260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/toro-v-coughlin-nyappdiv-1988.

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