Pearsall v. Coughlin

• Decision Date: 02 April 1992
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of Thomas PEARSALL, Petitioner, v. Thomas COUGHLIN III, as Commissioner of Corrections, et al., Respondents.

Page 913

581 N.Y.S.2d 913

182 A.D.2d 884

In the Matter of Thomas PEARSALL, Petitioner, v. Thomas COUGHLIN III, as Commissioner of Corrections, et al., Respondents.

Supreme Court, Appellate Division,

Third Department.

April 2, 1992.

Thomas Pearsall, in pro per.

Robert Abrams, Atty. Gen. (Joseph Koczaja, of counsel), Albany, for respondents.

Before MERCURE, J.P., and CREW, MAHONEY, CASEY and HARVEY, JJ.

MEMORANDUM DECISION.

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 Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

A misbehavior report by itself can constitute substantial evidence to support a determination of guilt in a prison disciplinary matter (see, Matter of Curl v. Kelly, 125 A.D.2d 948, 510 N.Y.S.2d 346). Here, the report contains a detailed eyewitness account of the shank found in petitioner's possession and sets forth the time, date and place as well as the circumstances leading to its discovery; it was therefore sufficiently relevant and probative to support the finding that petitioner possessed an instrument that could be classified as a weapon (see, id.). Petitioner's contentions to the contrary merely raised questions of credibility within the exclusive province of the Hearing Officer to resolve (see, Matter of Hernandez v. Le Fevre, 150 A.D.2d 954, 541 N.Y.S.2d 868, lv. denied 74 N.Y.2d 615, 549 N.Y.S.2d 960, 549 N.E.2d 151). With respect to the claim that he was denied his right to call a certain witness, even if that issue was properly preserved for our review, the record reveals that petitioner replied affirmatively when asked whether he was willing to accept the testimony of another witness in place of the witness he originally requested (see, Matter of Huggins v. Coughlin, 155 A.D.2d 844, 548 N.Y.S.2d 105, affd on mem below76 N.Y.2d 904, 561 N.Y.S.2d 910, 563 N.E.2d 281). As to petitioner's remaining contentions, they have been considered and rejected as either unpreserved for review or lacking in merit (see, Matter of Bates v. Coughlin, 145 A.D.2d 854, 535 N.Y.S.2d 838, lv. denied 74 N.Y.2d 602, 541 N.Y.S.2d 985, 539 N.E.2d 1113).

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