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Waugh v. Miller

238 A.D.2d 645 Court N.Y. App. Div. Decision date 1997-04-03 English

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p. 645
In the Matter of Dean Waugh, Petitioner, v David L. Miller, as Superintendent of Eastern Correctional Facility, Respondent.
[656 NYS2d 958]

—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.

Petitioner was found guilty of violating the prison disciplin

p. 646
ary rules that prohibit creating a disturbance, harassment and refusing to obey a direct order. The record contains substantial evidence in support of this determination. Adduced in evidence at petitioner’s disciplinary hearing was a detailed misbehavior report as well as the testimony of the correction officer who had witnessed the conduct in question (see, Matter of Foster v Coughlin, 76 NY2d 964 , 966). That the testimony of petitioner and that of his inmate witnesses was in conflict therewith presented an issue of credibility for the Hearing Officer’s determination (see, id,.).

Although the disciplinary proceeding was not concluded within 14 days of the writing of the misbehavior report, it was not untimely concluded as it was adjourned beyond the 14-day period to obtain the testimony of petitioner’s witness (see, Matter of Kron v Coombe, 233 AD2d 641 ; Matter of Jones v Selsky, 223 AD2d 990 , 991).

Crew III, J. P., White, Peters, Spain and Carpinello, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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