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Lopez v. Healy

Appellate Division of the Supreme Court of New York, Third Department
Apr 12, 2007
835 N.Y.S.2d 464 (N.Y. App. Div. 2007)

Opinion

No. 500278.

April 12, 2007.

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.

William Lopez, Auburn, petitioner pro se.

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

Before: Cardona, P.J., Mercure, Peters, Lahtinen and Kane, JJ.


Petitioner worked as a law clerk in the law library, at which time he told a correction officer that he was not doing legal work for another inmate even though certain legal papers belonging to the inmate were found on his desk and he started to compose a letter for the inmate. Petitioner was charged in a misbehavior report with lying and providing unauthorized legal assistance. Following a tier II disciplinary hearing, he was found guilty of both charges and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

The misbehavior report, together with the testimony at the hearing, including petitioner's admission that he did not have authorization to provide legal assistance to the inmate, provide substantial evidence supporting the determination of guilt ( see Matter of Chaney v Selsky, 35 AD3d 1109; Matter of Petrucco v Barkley, 260 AD2d 705, 705-706). Petitioner's testimony that the inmate inadvertently left legal papers on his desk and that petitioner merely typed the name and number of the inmate on his computer for future reference presented a credibility issue for the Hearing Officer to resolve ( see Matter of Kalwasinski v Goord, 25 AD3d 1050, 1050; Matter of Gayle v Bigness, 207 AD2d 940, lv denied 85 NY2d 804). Moreover, there was no error in the Hearing Officer's denial of petitioner's request to submit the law library's policy and procedure manual at the hearing inasmuch as Directive No. 4483, requiring that legal assistance be authorized, rendered it irrelevant to the charges ( see Matter of Jackson v Goord, 18 AD3d 973, 974, lv denied 5 NY3d 713; Matter of Mastropietro v Goord, 14 AD3d 914, 915).

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


Summaries of

Lopez v. Healy

Appellate Division of the Supreme Court of New York, Third Department
Apr 12, 2007
835 N.Y.S.2d 464 (N.Y. App. Div. 2007)
Case details for

Lopez v. Healy

Case Details

Full title:In the Matter of WILLIAM LOPEZ, Petitioner, v. PETER HEALY, as Acting…

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

Date published: Apr 12, 2007

Citations

835 N.Y.S.2d 464 (N.Y. App. Div. 2007)
835 N.Y.S.2d 464
2007 N.Y. Slip Op. 3032

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