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Gonzalez v. Goord

272 A.D.2d 797 Court N.Y. App. Div. Decision date 2000-05-25 English

Delivered by Crew III, J. P.

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p. 797
In the Matter of Roberto Gonzalez, Petitioner, v Glenn Goord, as Commissioner of New York State Department of Correctional Services, Respondent.
[708 NYS2d 923]

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 certain prison disciplinary rules.

Petitioner, a prison inmate, was charged in a misbehavior report with committing a sex offense and engaging in physical contact with another inmate after a correction officer observed him performing a sexual act with the other inmate in the facility auditorium. Following a tier III disciplinary hearing, petitioner was found guilty of both charges and subsequently commenced this CPLR article 78 proceeding challenging the underlying determination. Supreme Court thereafter transferred the matter to this Court for our review.

The misbehavior report and the testimony of the correction officer who authored the report and provided a detailed description of petitioner’s sexual conduct was sufficient to constitute substantial evidence of petitioner’s guilt (see, Matter of

p. 798
Murray v Goord, 263 AD2d 794 , 795). Although petitioner contends that he did not engage in a sexual act with the inmate and, further, that the configuration of the auditorium would have prevented the correction officer from observing his conduct, this merely presented credibility issues for the Hearing Officer’s resolution (see, id., at 795 ; Matter of Washington v Scully, 138 AD2d 874 , 875). The fact that such credibility issues were resolved against petitioner is not indicative of any bias on the part of the Hearing Officer (see, Matter of Green v Selsky, 268 AD2d 737 ), who conducted petitioner’s hearing in an impartial manner (see, Matter of Green v Coombe, 234 AD2d 756 , 757). Finally, we conclude that the gaps in the hearing transcript are not so significant as to preclude meaningful review (see, Matter of Carter v Goord, 266 AD2d 623 , 624; Matter of Reid v Coughlin, 221 AD2d 888 ). Petitioner’s remaining contentions have been examined and found to be without merit.

Spain, Carpinello, Graffeo and Mugglin, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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