Tunstall v. Miller

274 A.D.2d 723, 711 N.Y.S.2d 793, 2000 N.Y. App. Div. LEXIS 7772

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 13, 2000
• Status: Published

Opinion

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

Petitioner, a prison inmate, challenges a determination finding him guilty of violating the prison disciplinary rules which prohibit lying and being out of place. Contrary to petitioner’s assertion, substantial evidence supports the determination of guilt. Although part of the misbehavior report was based upon hearsay, the misbehavior report, written by the correction officer who was searching for petitioner and endorsed by the correction officer who was alleged to have given petitioner permission to be in the recreation area, was sufficiently relevant and probative with respect to the time, place and persons involved to constitute substantial evidence of petitioner’s guilt (see, Matter of Foster v Coughlin, 76 NY2d 964, 966). Furthermore, the fact that petitioner was unaware that his company was not scheduled for late night recreation does not absolve petitioner of guilt of the charge of being out of place (see, Matter of Feliciano v Selsky, 263 AD2d 810, 811). Lastly, we have reviewed petitioner’s remaining contentions, including his assertion of Hearing Officer bias, and find them to be without merit.

Crew III, J. P., Peters, Spain, Mugglin and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.