R. R. Roberts v. Selsky — 255 A.D.2d 977

Majority

p. 977

In the Matter of R. R. Roberts, Petitioner, v Donald Selsky, as Director of Special Housing/Inmate Disciplinary Programs of New York State Department of Correctional Services, et al., Respondents.

[681 NYS2d 714]

—Determination unanimously confirmed without costs and petition dismissed. Memorandum: After a Tier III hearing, petitioner was found guilty of violating inmate rule 101.10 (7 NYCRR 270.2 [B] [2] [i] [inmates shall not engage in, encourage, solicit or attempt to force others to engage in sexual acts]). The misbehavior report constitutes substantial evidence supporting the determination (see, Matter of Parker v Coughlin, 211 AD2d 929 ; see also, People ex rel. Vega v Smith, 66 NY2d 130 , 139). Petitioner’s explanation of the incident at the disciplinary hearing served only to present a credibility issue, which the Hearing Officer resolved in favor of the correction officer’s version of the incident (see, Matter of Foster v Coughlin, 76 NY2d 964 , 966). Contrary to petitioner’s contention, the misbehavior report was not so discredited that it was insufficient to support the determination of guilt (cf., Matter of Horn v Coughlin, 198 AD2d 745 ).

We reject petitioner’s contention that intermittent gaps in the hearing transcript require annulment. “[T]he missing testimony ‘is neither material to the determination nor of such significance as to preclude meaningful review’ (Matter of Rodriguez v Coughlin, 167 AD2d 671 )” (Matter of Torres v Coombe, 234 AD2d 710 , 710-711).

p. 978

The record does not support petitioner’s contention that the Hearing Officer was biased (see, Matter of Parker v Coughlin, supra; Matter of Martinez v Scully, 194 AD2d 679 ). Petitioner’s contention that the rules fail to state the range of disciplinary sanctions lacks merit (see, Matter of Coleman v Kelly, 72 NY2d 850 , 852). The penalty imposed is not excessive. (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Cayuga County, Corning, J.) Present — Green, J. P., Pine, Wisner, Balio and Boehm, JJ.

Cases cited

People ex rel. Vega v. Smith 66 NY2d 130 N.Y. 1985-10-15 at 139 p. 977
Foster v. Coughlin 76 NY2d 964 N.Y. 1990-11-27 at 966 p. 977
Horn v. Coughlin 198 AD2d 745 N.Y. App. Div. 1993-11-24 p. 977
Torres v. Coombe 234 AD2d 710 N.Y. App. Div. 1996-12-12 at 710-711 p. 977
Martinez v. Scully 194 AD2d 679 N.Y. App. Div. 1993-06-14 p. 978
Coleman v. Kelly 72 NY2d 850 N.Y. 1988-06-30 at 852 p. 978