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Dancy v. Goord

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


January 8, 2009

IN THE MATTER OF MELVILLE DANCY, PETITIONER,
v.
GLENN S. GOORD, AS COMMISSIONER OF CORRECTIONAL SERVICES, ET AL., RESPONDENTS.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: November 24, 2008

Before: Rose, J.P., Kane, Malone Jr., Kavanagh and Stein, JJ.

MEMORANDUM AND JUDGMENT

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review two determinations of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Following an altercation with correction officers, petitioner was charged in two misbehavior reports with assault, violent conduct and refusing a direct order. Separate tier III hearings ensued, at the conclusion of which petitioner was found guilty of all charges and administrative penalties were imposed. Although one of the penalties subsequently was modified, petitioner's administrative appeals otherwise proved unsuccessful, prompting him to commence this proceeding pursuant to CPLR article 78 to challenge those determinations.

Preliminarily, to the extent that petitioner pleaded guilty to one of the violent conduct violations, he is precluded from challenging that portion of the determination of guilt (see Matter of Ramirez v Goord, 32 AD3d 601, 601 [2006]). As to the remaining violations, the misbehavior reports and the testimony of the authoring correction officers provide substantial evidence of petitioner's guilt (see Matter of McCloud v Selsky, 45 AD3d 1127, 1128 [2007]; Matter of Frazier v Artus, 40 AD3d 1288, 1288 [2007]). Petitioner's claim of self-defense and/or his exculpatory explanations for his conduct presented a credibility issue for the Hearing Officer to resolve (see Matter of Amaker v Selsky, 43 AD3d 547, 547 [2007], lv denied 9 NY3d 814 [2007]). Further, by failing to renew his request for a copy of the unusual incident report prior to the close of the hearing, petitioner waived any objection in this regard (see Matter of Gray v Selsky, 37 AD3d 890, 890 [2007]). In any event, petitioner failed to establish any prejudice as a result of not being provided with a copy of this document (see id.). Petitioner's remaining contentions, to the extent they are properly before us, have been examined and found to be lacking in merit.

Rose, J.P., Kane, Malone Jr., Kavanagh and Stein, JJ., concur.

ADJUDGED that the determinations are confirmed, without costs, and petition dismissed.

20090108

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