From Casetext: Smarter Legal Research

Matter of Roberts v. Selsky

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 13, 1998
255 A.D.2d 977 (N.Y. App. Div. 1998)

Opinion

November 13, 1998

Present — Green, J. P., Pine, Wisner, Balio and Boehm, JJ.


Determination unanimously confirmed without costs and petition dismissed. Memorandum: After a Tier III hearing, petitioner was found guilty of violating inmate rule 101.10 ( 7 NYCRR 270.2 [B] [2] [i] [inmates shall not engage in, encourage, solicit or attempt to force others to engage in sexual acts]). The misbehavior report constitutes substantial evidence supporting the determination ( see, Matter of Parker v. Coughlin, 211 A.D.2d 929; see also, People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139). Petitioner's explanation of the incident at the disciplinary hearing served only to present a credibility issue, which the Hearing Officer resolved in favor of the correction officer's version of the incident ( see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966). Contrary to petitioner's contention, the misbehavior report was not so discredited that it was insufficient to support the determination of guilt ( cf., Matter of Horn v. Coughlin, 198 A.D.2d 745).

We reject petitioner's contention that intermittent gaps in the hearing transcript require annulment. "[T]he missing testimony `is neither material to the determination nor of such significance as to preclude meaningful review ( Matter of Rodriguez v. Coughlin, 167 A.D.2d 671)" ( Matter of Torres v. Coombe, 234 A.D.2d 710, 710-711).

The record does not support petitioner's contention that the Hearing Officer was biased ( see, Matter of Parker v. Coughlin, supra; Matter of Martinez v. Scully, 194 A.D.2d 679). Petitioner's contention that the rules fail to state the range of disciplinary sanctions lacks merit ( see, Matter of Coleman v. Kelly, 72 N.Y.2d 850, 852). The penalty imposed is not excessive. (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Cayuga County, Corning, J.)


Summaries of

Matter of Roberts v. Selsky

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 13, 1998
255 A.D.2d 977 (N.Y. App. Div. 1998)
Case details for

Matter of Roberts v. Selsky

Case Details

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

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

Date published: Nov 13, 1998

Citations

255 A.D.2d 977 (N.Y. App. Div. 1998)
681 N.Y.S.2d 714

Citing Cases

Jones v. Annucci

Petitioner's denials of the reported misbehavior raised, at most, an issue of credibility for resolution by…