From Casetext: Smarter Legal Research

In re Pellot

Appellate Division of the Supreme Court of New York, Third Department
Nov 19, 2009
67 A.D.3d 1231 (N.Y. App. Div. 2009)

Opinion

No. 506870.

November 19, 2009.

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

George Pellot, Attica, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

Before: Mercure, J.P., Spain, Lahtinen, Kavanagh and McCarthy, JJ., concur.


Following an incident in which petitioner brushed up against a female cook in an inappropriate manner while she was working behind the serving line, petitioner was charged in a misbehavior report with assaulting staff, forcibly touching an employee and physically interfering with an employee. He was found guilty of interfering with an employee following a tier III disciplinary hearing. The determination was affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.

Initially, the detailed misbehavior report, authored by the employee whom petitioner touched, and related documentation constitute substantial evidence supporting the determination of guilt ( see Matter of Kimble v Fischer, 56 AD3d 879, 880; Matter of Tayler v Selsky, 49 AD3d 1060, 1060). The contrary testimony of petitioner and that of his inmate witnesses presented a credibility issue for the Hearing Officer to resolve ( see Matter of Hale v Selsky, 57 AD3d 1136, 1137, appeal dismissed 12 NY3d 776; Matter of Perez v Dubray, 55 AD3d 1119, 1119). Petitioner's claim that the Hearing Officer improperly failed to inquire whether petitioner understood the charges or needed a translator has not been preserved for our review ( see Matter of Quinones v Fischer, 55 AD3d 1200, 1200-1201; Matter of Britt v Fischer, 54 AD3d 1087, 1087). Therefore, the determination must be confirmed.

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


Summaries of

In re Pellot

Appellate Division of the Supreme Court of New York, Third Department
Nov 19, 2009
67 A.D.3d 1231 (N.Y. App. Div. 2009)
Case details for

In re Pellot

Case Details

Full title:In the Matter of GEORGE PELLOT, Petitioner, v. BRIAN FISCHER, as…

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

Date published: Nov 19, 2009

Citations

67 A.D.3d 1231 (N.Y. App. Div. 2009)
2009 N.Y. Slip Op. 8547
890 N.Y.S.2d 132

Citing Cases

New v. Vasile

We confirm. The misbehavior report, related documentation and detailed testimony of its author provide…

In re Valentino

Initially, respondent concedes and we agree that, upon a review of the record, that part of the determination…