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Rivera v. McGinnis

Appellate Division of the Supreme Court of New York, Third Department
Jan 17, 2002
290 A.D.2d 800 (N.Y. App. Div. 2002)

Opinion

90321

January 17, 2002.

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

Jose Rivera, petitioner pro se.

Eliot Spitzer, Attorney-General (Wayne L. Benjamin of counsel), Albany, for respondent.

Before: Cardona, P.J., Mercure, Spain, Carpinello and, Lahtinen, JJ.


MEMORANDUM AND JUDGMENT

Petitioner challenges a determination finding him guilty of violating the prison disciplinary rule prohibiting lewd exposure after a facility nurse witnessed petitioner masturbating in his cell. Contrary to petitioner's contention, the misbehavior report, authored by the nurse who witnessed the incident, and petitioner's own admissions regarding his conduct constitute substantial evidence supporting the determination of guilt (see, Matter of Green v. Goord, 284 A.D.2d 677; Matter of McMillian v. Selsky, 268 A.D.2d 936). Petitioner's assertion that the incident was unintentional as he was unaware that the nurse was still making her rounds presented a credibility issue which the Hearing Officer resolved against him (see, Matter of McMillian v. Selsky, supra).

Cardona, P.J., Mercure, Spain, Carpinello and Lahtinen, JJ., concur.

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


Summaries of

Rivera v. McGinnis

Appellate Division of the Supreme Court of New York, Third Department
Jan 17, 2002
290 A.D.2d 800 (N.Y. App. Div. 2002)
Case details for

Rivera v. McGinnis

Case Details

Full title:IN THE MATTER OF JOSE RIVERA, Petitioner, v. MICHAEL McGINNIS, AS…

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

Date published: Jan 17, 2002

Citations

290 A.D.2d 800 (N.Y. App. Div. 2002)
735 N.Y.S.2d 899

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