WALTON, SAMUEL v. COLVIN, JOHN

Appellate Division of the Supreme Court of New York

WALTON, SAMUEL v. COLVIN, JOHN

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

DecidedNovember 10, 2016

DocketTP 16-00103

StatusPublished

This text of WALTON, SAMUEL v. COLVIN, JOHN (WALTON, SAMUEL v. COLVIN, JOHN) 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.

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WALTON, SAMUEL v. COLVIN, JOHN, (N.Y. Ct. App. 2016).

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Opinion

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

910 TP 16-00103 PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, AND SCUDDER, JJ.

IN THE MATTER OF SAMUEL WALTON, PETITIONER,

V MEMORANDUM AND ORDER

JOHN COLVIN, SUPERINTENDENT, FIVE POINTS CORRECTIONAL FACILITY AND ANTHONY ANNUCCI, ACTING COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENTS.

SAMUEL WALTON, PETITIONER PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF COUNSEL), FOR RESPONDENTS.

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Seneca County [Dennis F. Bender, A.J.], entered January 19, 2016) to review a determination finding after a tier II hearing that petitioner had violated two inmate rules.

It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.

Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a tier II disciplinary hearing, that he violated two inmate rules. We reject petitioner’s contention that the determination is not supported by substantial evidence. Specifically, the misbehavior report, together with the videotape of the incident and the hearing testimony of the correction officer who prepared the misbehavior report, “constitutes substantial evidence supporting the determination that petitioner violated [the] inmate rule[s]” at issue (Matter of Oliver v Fischer, 82 AD3d 1648, 1648). Petitioner’s denials of the reported misbehavior presented only an issue of credibility for resolution by the Hearing Officer (see Matter of Foster v Coughlin, 76 NY2d 964, 966).

Entered: November 10, 2016 Frances E. Cafarell Clerk of the Court

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SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

910 TP 16-00103 PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, AND SCUDDER, JJ.

IN THE MATTER OF SAMUEL WALTON, PETITIONER,

V MEMORANDUM AND ORDER

JOHN COLVIN, SUPERINTENDENT, FIVE POINTS CORRECTIONAL FACILITY AND ANTHONY ANNUCCI, ACTING COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENTS.

SAMUEL WALTON, PETITIONER PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF COUNSEL), FOR RESPONDENTS.

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Seneca County [Dennis F. Bender, A.J.], entered January 19, 2016) to review a determination finding after a tier II hearing that petitioner had violated two inmate rules.

It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.

Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a tier II disciplinary hearing, that he violated two inmate rules. We reject petitioner’s contention that the determination is not supported by substantial evidence. Specifically, the misbehavior report, together with the videotape of the incident and the hearing testimony of the correction officer who prepared the misbehavior report, “constitutes substantial evidence supporting the determination that petitioner violated [the] inmate rule[s]” at issue (Matter of Oliver v Fischer, 82 AD3d 1648, 1648). Petitioner’s denials of the reported misbehavior presented only an issue of credibility for resolution by the Hearing Officer (see Matter of Foster v Coughlin, 76 NY2d 964, 966).

Entered: November 10, 2016 Frances E. Cafarell Clerk of the Court

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V MEMORANDUM AND ORDER

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