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Matter of Patterson v. Kelly

Appellate Division of the Supreme Court of New York, Fourth Department
Jul 12, 1989
152 A.D.2d 1012 (N.Y. App. Div. 1989)

Opinion

July 12, 1989

Appeal from the Supreme Court, Wyoming County, Dadd, J.

Present — Dillon, P.J., Callahan, Green, Balio and Lawton, JJ.


Judgment unanimously vacated, determination confirmed and petition dismissed. Memorandum: The court erred in failing to transfer the proceeding to this court (see, CPLR 7804 [g]; 7803 [4]), but we review the issues as if the proceeding had been properly transferred in the first instance (see, Matter of Melvin v Kelly, 126 A.D.2d 956, lv denied 69 N.Y.2d 609; Matter of Curl v Kelly, 125 A.D.2d 948).

The determination was based on the written report and testimony of the charging officer. The Hearing Officer was entitled to credit this evidence even though petitioner presented inmate witnesses whose testimony differed from that of the charging officer. The determination was supported by substantial evidence and must be confirmed (see, People ex rel. Vega v Smith, 66 N.Y.2d 130; Matter of Melvin v Kelly, supra).

Petitioner's remaining argument, that the penalty imposed was improper in that the Hearing Officer recommended a job reassignment, is not properly before us. The Hearing Officer merely expressed an advisory opinion. Petitioner has no statutory, regulatory or precedential right to a specific prison job (see, Matter of Cooper v Smith, 99 A.D.2d 644, affd 63 N.Y.2d 615).


Summaries of

Matter of Patterson v. Kelly

Appellate Division of the Supreme Court of New York, Fourth Department
Jul 12, 1989
152 A.D.2d 1012 (N.Y. App. Div. 1989)
Case details for

Matter of Patterson v. Kelly

Case Details

Full title:In the Matter of EMMANUEL PATTERSON, Appellant, v. WALTER R. KELLY, as…

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

Date published: Jul 12, 1989

Citations

152 A.D.2d 1012 (N.Y. App. Div. 1989)

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