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Gioe v. Selsky

Appellate Division of the Supreme Court of New York, Third Department
Feb 3, 2000
269 A.D.2d 644 (N.Y. App. Div. 2000)

Opinion

February 3, 2000

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.

Renato Gioe, Moravia, petitioner in person.

Eliot Spitzer, Attorney-General (Nancy A. Spiegel of counsel), Albany, for respondent.

Before: CARDONA, P.J., MERCURE, CARPINELLO, GRAFFEO and MUGGLIN, JJ.


MEMORANDUM AND JUDGMENT

Following a disciplinary hearing, petitioner, a prison inmate, was found guilty of exchanging drugs in violation of a prison disciplinary rule. According to the misbehavior report, a correction officer observed petitioner pass a package to another inmate in a "very suspicious" manner. When the other inmate was frisked, it was discovered that the package contained a substance which later was shown to be marihuana. Contrary to petitioner's contention, the misbehavior report, authored by a correction officer who witnessed the exchange and endorsed by the correction officer who frisked the recipient of the package, together with the testimony presented at the hearing provide substantial evidence to support the determination of petitioner's guilt (see,Matter of Foster v. Coughlin, 76 N.Y.2d 964). The conflicting testimony presented by petitioner merely raised a credibility issue for the Hearing Officer to resolve (see, Matter of Alvarado v. Goord, 252 A.D.2d 650). The remaining arguments included in petitioner's brief, including his challenge to the sufficiency of the misbehavior report and his claim of Hearing Officer bias, have been waived due to his failure to raise them on his administrative appeal or in the petition. In any event, were these contentions properly before us, we would find them to be unpersuasive.

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


Summaries of

Gioe v. Selsky

Appellate Division of the Supreme Court of New York, Third Department
Feb 3, 2000
269 A.D.2d 644 (N.Y. App. Div. 2000)
Case details for

Gioe v. Selsky

Case Details

Full title:In the Matter of RENATO GIOE, Petitioner, v. DONALD SELSKY, as Director of…

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

Date published: Feb 3, 2000

Citations

269 A.D.2d 644 (N.Y. App. Div. 2000)
705 N.Y.S.2d 81

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