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Polanco v. Coughlin

193 A.D.2d 918 Court N.Y. App. Div. Decision date 1993-05-13 English

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p. 918
In the Matter of Wilfredo Polanco, Petitioner, v Thomas A. Coughlin, as Commissioner of Correctional Services of the State of New York, et al., Respondents.
[597 NYS2d 810]

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

Petitioner was found guilty after a Superintendent’s hearing of violating a prison disciplinary rule which prohibits possession of a weapon. After an unsuccessful administrative appeal petitioner commenced this proceeding, contending that the determination was not supported by substantial evidence and that other procedural errors require annulment.

The misbehavior report states that a razor blade was found

p. 919
in the sleeve of petitioner’s sweatshirt during a routine search by the correction officer who authored the report. This report, along with the confirmatory testimony of the correction officer who authored the report, provided substantial evidence to support the finding of guilt (see, Matter of Foster v Coughlin, 76 NY2d 964 , 966; People ex rel. Vega v Smith, 66 NY2d 130 , 139-140). Further, petitioner waived receipt of a Spanish translation of the misbehavior report by affirmatively requesting that the hearing proceed without immediate production of the report (see, Matter of Sanchez v Hoke, 116 AD2d 965 ). Finally, petitioner’s hearing was timely commenced given that petitioner was in special housing at the time the misbehavior report was served (see, 7 NYCRR 251-5.1; Matter of Sardo v Murphy, 175 AD2d 972 ; Matter of Young v Coughlin, 144 AD2d 753 , lv dismissed 74 NY2d 625 ).

Mikoll, J. P., Yesawich Jr., Mercure, Crew III and Casey, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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