Valasquez v. Miller

Appellate Division of the Supreme Court of New York

Valasquez v. Miller

250 A.D.2d 895, 672 N.Y.S.2d 267, 1998 N.Y. App. Div. LEXIS 5347

Appellate Division of the Supreme Court of the State of New York·Decided May 7, 1998·Published·Cited by 1 cases

Opinion

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

Substantial evidence supports the determination finding petitioner, a prison inmate, guilty of violating prison disciplinary rule 100.15, which provides that “[i]nmates shall not engage in unauthorized sparring, wrestling, body-punching, or other forms of disorderly conduct” (7 NYCRR 270.2 [B] [1] [vi]). Petitioner and the other inmate involved in the altercation testified that they were both engaged in “horse play” prior to the time they were discovered injured by correction officers. Assuming, arguendo, that petitioner’s claim of bias is preserved for review, we find nothing to support the assertion that the Hearing Officer, who found petitioner not guilty of two of the chargés in the misbehavior report, was biased or that the outcome of the hearing flowed from any alleged bias (see, Matter of Applegate v Coombe, 237 AD2d 836, lv denied 90 NY2d 803).

Mikoll, J. P., Mercure, White, Peters and Graffeo, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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

Substantial evidence supports the determination finding petitioner, a prison inmate, guilty of violating prison disciplinary rule 100.15, which provides that “[i]nmates shall not engage in unauthorized sparring, wrestling, body-punching, or other forms of disorderly conduct” (7 NYCRR 270.2 [B] [1] [vi]). Petitioner and the other inmate involved in the altercation testified that they were both engaged in “horse play” prior to the time they were discovered injured by correction officers. Assuming, arguendo, that petitioner’s claim of bias is preserved for review, we find nothing to support the assertion that the Hearing Officer, who found petitioner not guilty of two of the chargés in the misbehavior report, was biased or that the outcome of the hearing flowed from any alleged bias (see, Matter of Applegate v Coombe, 237 AD2d 836, lv denied 90 NY2d 803).

Mikoll, J. P., Mercure, White, Peters and Graffeo, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Valasquez v. Miller, 250 A.D.2d 895, 672 N.Y.S.2d 267, 1998 N.Y. App. Div. LEXIS 5347 (N.Y. Ct. App. 1998).

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Opinion

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