Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

In the Matter of Kenneth v. Joseph T. Smith

State of New York Supreme Court, Appellate Division Third Judicial Department


July 5, 2012

IN THE MATTER OF KENNETH ELMORE, PETITIONER,
v.
JOSEPH T. SMITH, AS SUPERINTENDENT OF SHAWANGUNK CORRECTIONAL FACILITY, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: May 9, 2012

Before: Rose, J.P., Malone Jr., Kavanagh, Garry and Egan Jr., JJ.

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

Following a physical altercation with another inmate, petitioner was charged in a misbehavior report with engaging in violent conduct and creating a disturbance. He was found guilty of the charges after a tier II disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of the correction officer who prepared it and had witnessed the incident, provide substantial evidence supporting the determination of guilt (see Matter of Benson v Selsky, 50 AD3d 1347 [2008]; Matter of Kennedy v Lacy, 277 AD2d 625 [2000]). Although petitioner maintained that he and the other inmate were only playing around, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Crenshaw v Fischer, 89 AD3d 1343, 1344 [2011]; Matter of Chiarappa v Fischer, 84 AD3d 1628, 1629 [2011]). His remaining contentions have not been preserved for our review due to his failure to raise them at the disciplinary hearing (see Matter of Lewis v Lape, 90 AD3d 1259, 1260 [2011], lv denied 18 NY3d 809 [2012]).

Rose, J.P., Malone Jr., Kavanagh, Garry and Egan Jr., JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20120705

© 1992-2012 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.