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Matter of Nunez v. Selsky

Appellate Division of the Supreme Court of New York, Third Department
Oct 26, 2000
276 A.D.2d 962 (N.Y. App. Div. 2000)

Opinion

October 26, 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 respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Christopher Nunez, New York City, petitioner in person.

Eliot Spitzer, Attorney-General (Kathleen M. Treasure of counsel), Albany, for respondents.

Before: Mercure, J.P., Peters, Graffeo, Mugglin and Lahtinen, JJ.


MEMORANDUM AND JUDGMENT

Following a tier III disciplinary hearing, petitioner was found guilty of violating the prison disciplinary rules that prohibit inmates from requesting unauthorized goods and soliciting an individual to smuggle. According to the misbehavior report, petitioner requested that a correction officer sneak alcohol into the facility. This determination was affirmed upon petitioner's administrative appeal. Petitioner thereafter commenced this CPLR article 78 proceeding and we confirm.

Contrary to petitioner's contention, we find that the misbehavior report, combined with the hearing evidence and the reporting officer's testimony, provide substantial evidence of petitioner's guilt (see,Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966). Although petitioner maintained that he never made the request for alcohol, this disparity in testimony raised a credibility issue for the Hearing Officer to resolve (see, Matter of De La Rosa v. Portuondo, 247 A.D.2d 810, 811).

Petitioner's remaining arguments have been examined and found to be unpersuasive. The misbehavior report was not untimely served because it was not authored until after the investigation of the incident was complete. We are convinced upon review of the record that the misbehavior report was prepared "as soon as practicable" ( 7 NYCRR 251-3.1 [a]).

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


Summaries of

Matter of Nunez v. Selsky

Appellate Division of the Supreme Court of New York, Third Department
Oct 26, 2000
276 A.D.2d 962 (N.Y. App. Div. 2000)
Case details for

Matter of Nunez v. Selsky

Case Details

Full title:In the Matter of CHRISTOPHER NUNEZ, Petitioner, v. DONALD SELSKY, as…

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

Date published: Oct 26, 2000

Citations

276 A.D.2d 962 (N.Y. App. Div. 2000)
715 N.Y.S.2d 918

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