Velez v. Goord

262 A.D.2d 906, 694 N.Y.S.2d 486, 1999 N.Y. App. Div. LEXIS 7480

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 24, 1999
• Status: Published

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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

Following a tier III disciplinary hearing, petitioner, a prison inmate, was found guilty of violating prison disciplinary rules which prohibit possessing unauthorized organizational materials and of disobeying facility correspondence procedures. According to the misbehavior report, petitioner was found to be in possession of, inter alia, unauthorized organizational materials, including a “call to arms” letter advocating gang violence. The determination of guilt was affirmed upon administrative appeal. Petitioner thereafter commenced this CPLR article 78 proceeding.

Initially, we find that petitioner waived any issue concerning the adequacy of the misbehavior report to give notice of the nature of the charges against him by failing to raise this issue at the hearing (see, Matter of Campanale v Coughlin, 214 AD2d 902). Turning to petitioner’s evidentiary challenge, we conclude that the misbehavior report, combined with the letters themselves and the reporting officer’s testimony, provide substantial evidence of his guilt (see, Matter of Foster v Coughlin, 76 NY2d 964, 966). Any disputes as to credibility were properly resolved by the Hearing Officer (see, Matter of Johnson v Barkley, 260 AD2d 882).

Finally, we have examined petitioner’s remaining arguments, including his claim of Hearing Officer bias, and, to the extent they have been preserved for appellate review, find them to be unpersuasive.

Cardona, P. J., Mikoll, Peters, Spain and Carpinello, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.