From Casetext: Smarter Legal Research

In the Matter of Ellis v. Selsky

Appellate Division of the Supreme Court of New York, Third Department
May 25, 2006
29 A.D.3d 1254 (N.Y. App. Div. 2006)

Opinion

99378.

May 25, 2006.

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 a prison disciplinary rule.

Robert J. Ellis, Rome, petitioner pro se.

Eliot Spitzer, Attorney General, Albany (Andrea Oser of counsel), for respondent.

Before: Cardona, P.J., Mercure, Crew III, Spain and Carpinello, JJ., concur.


Petitioner was charged in a misbehavior report with violating the prison disciplinary rules that prohibit solicitation of a sexual act and harassment. The charges stemmed from a note that petitioner gave to a female teaching instructor wherein he expressed that he would miss the instructor and would like to discretely give her a hug goodbye before she left for the summer. Following a tier III disciplinary hearing, petitioner was found guilty of both charges. The determination was modified on administrative appeal by dismissing the charge of sexual solicitation and modifying the penalty imposed on the harassment charge. This CPLR article 78 proceeding ensued.

Although it appears that a question of substantial evidence was not raised in the petition and the proceeding need not have been transferred to this Court, we nevertheless retain jurisdiction in the interest of judicial economy ( see Matter of Otero v. Goord, 17 AD3d 805, 806 n [2005]).

We are unpersuaded by petitioner's sole contention that the misbehavior report failed to afford him sufficient notice of the charge against him in order to adequately prepare a defense. The misbehavior report specified that the harassment charge arose from the communication of a message of a personal nature as conveyed in a note from petitioner and that note was attached to the misbehavior report. Accordingly, we find that petitioner was given sufficient notice of the charges against him to enable him to prepare a defense ( see Matter of Abdur-Raheem v. Mann, 85 NY2d 113, 123 [1995]; Matter of Williams v. Goord, 23 AD3d 972).

Adjudged that the determination is confirmed, without costs, and petition dismissed.


Summaries of

In the Matter of Ellis v. Selsky

Appellate Division of the Supreme Court of New York, Third Department
May 25, 2006
29 A.D.3d 1254 (N.Y. App. Div. 2006)
Case details for

In the Matter of Ellis v. Selsky

Case Details

Full title:In the Matter of ROBERT J. ELLIS, Petitioner, v. DONALD SELSKY, as…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: May 25, 2006

Citations

29 A.D.3d 1254 (N.Y. App. Div. 2006)
2006 N.Y. Slip Op. 4144
815 N.Y.S.2d 345

Citing Cases

McDonald v. Fischer

Initially, petitioner contends that the misbehavior report failed to specify the particulars of the alleged…

Fabeedullah v. Fischer

Initially, we reject petitioner's assertion that the misbehavior report was insufficient to provide him with…