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Matter of Johnson v. Barkley [3d Dept 1999

Appellate Division of the Supreme Court of New York, Third Department
Apr 22, 1999
260 A.D.2d 882 (N.Y. App. Div. 1999)

Opinion

April 22, 1999

Derrick Johnson, Ogdensburg, petitioner in person.

Eliot Spitzer, Attorney-General (Marcus J. Mastracco of counsel), Albany, for respondent.

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


MEMORANDUM AND JUDGMENT

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in St. Lawrence County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

Following a tier II disciplinary hearing, petitioner was found guilty of violating the prison disciplinary rule prohibiting the possession of contraband. The misbehavior report stated that on February 6, 1998 a correction officer discovered a mess hall fork under petitioner's locker while performing a "cube" search. In our view, the clear and detailed misbehavior report, combined with the testimony of the correction officer involved in the search, constitute sufficient evidence to substantiate the alleged misconduct (see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966). Although petitioner's inmate witnesses testified that there was no fork under the locker, this merely presented a credibility issue for the Hearing Officer to resolve (see, Matter of Flowers v. Barkley, 244 A.D.2d 682, 683). We have examined petitioner's remaining contentions and find them to be lacking in merit. Contrary to petitioner's argument, it was his own responsibility to make sure that no unauthorized items were present in his cell.

Cardona, P.J., Mercure, Peters, Carpinello and Graffeo, JJ., concur.

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


Summaries of

Matter of Johnson v. Barkley [3d Dept 1999

Appellate Division of the Supreme Court of New York, Third Department
Apr 22, 1999
260 A.D.2d 882 (N.Y. App. Div. 1999)
Case details for

Matter of Johnson v. Barkley [3d Dept 1999

Case Details

Full title:In the Matter of DERRICK JOHNSON, Petitioner, v. WAYNE BARKLEY, as…

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

Date published: Apr 22, 1999

Citations

260 A.D.2d 882 (N.Y. App. Div. 1999)
689 N.Y.S.2d 537

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