Valerio v. Selsky

Appellate Division of the Supreme Court of New York

Valerio v. Selsky

19 A.D.3d 959, 797 N.Y.S.2d 643, 2005 N.Y. App. Div. LEXIS 7199

Appellate Division of the Supreme Court of the State of New York·Decided June 30, 2005·Published·Cited by 1 cases

Opinion

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

Petitioner commenced this CPLR article 78 proceeding to challenge a determination finding him guilty of violating prison disciplinary rules prohibiting violent conduct, making threats and refusing to obey a direct order. Contrary to petitioner’s contention, the detailed misbehavior report, which was written by the facility employee who was the victim of the alleged misconduct, was “ ‘sufficiently relevant and probative’ to constitute substantial evidence” of his guilt (Matter of Foster v Coughlin, 76 NY2d 964, 966 [1990] [citations omitted], quoting Matter of Perez v Wilmot, 67 NY2d 615, 616-617 [1986]; see Matter of Johnson v Goord, 4 AD3d 582, 583-584 [2004], lv denied 2 NY3d 708 [2004]). The explanation offered by petitioner merely raised an issue of credibility that the Hearing Officer was free to resolve (see Matter of McCann v Goord, 4 AD3d 712 [2004]). [960] To the extent that they were preserved, petitioner’s remaining contentions, including his claim of hearing officer bias, have been reviewed and found to be unsupported by the record.

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

Free access — add to your briefcase to read the full text and ask questions with AI

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

Petitioner commenced this CPLR article 78 proceeding to challenge a determination finding him guilty of violating prison disciplinary rules prohibiting violent conduct, making threats and refusing to obey a direct order. Contrary to petitioner’s contention, the detailed misbehavior report, which was written by the facility employee who was the victim of the alleged misconduct, was “ ‘sufficiently relevant and probative’ to constitute substantial evidence” of his guilt (Matter of Foster v Coughlin, 76 NY2d 964, 966 [1990] [citations omitted], quoting Matter of Perez v Wilmot, 67 NY2d 615, 616-617 [1986]; see Matter of Johnson v Goord, 4 AD3d 582, 583-584 [2004], lv denied 2 NY3d 708 [2004]). The explanation offered by petitioner merely raised an issue of credibility that the Hearing Officer was free to resolve (see Matter of McCann v Goord, 4 AD3d 712 [2004]). [960] To the extent that they were preserved, petitioner’s remaining contentions, including his claim of hearing officer bias, have been reviewed and found to be unsupported by the record.

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

Valerio v. Selsky, 19 A.D.3d 959, 797 N.Y.S.2d 643, 2005 N.Y. App. Div. LEXIS 7199 (N.Y. Ct. App. 2005).

Pincite

19 A.D.3d 959 (Valerio v. Selsky) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related