You are here: / / THE EVIDENCE DID NOT SUPPORT THE DETERMINATION PETITIONER-INMATE WAS GUILTY...

THE EVIDENCE DID NOT SUPPORT THE DETERMINATION PETITIONER-INMATE WAS GUILTY OF “CREATING A DISTURBANCE” (THIRD DEPT).

The Third Department, annulling the disciplinary determination, held the evidence did not demonstrate petitioner-inmate was guilty of “creating a disturbance:”

Pursuant to the relevant regulations, an incarcerated individual “shall not engage in conduct which disturbs the order of any part of the facility” (7 NYCRR 270.2 [B] [5] [iv]). Such disruptive conduct includes, as relevant here, “loud talking in a mess hall, program area or corridor” (7 NYCRR 270.0 [B] [5] [iv]). The misbehavior report, which was the sole evidence relied upon by the Hearing Officer, provided, in relevant part, that petitioner was observed “arguing” with another incarcerated individual “in the dorm hallway . . ., which drew the attention of the [incarcerated individuals] nearby.” The misbehavior report does not reflect that petitioner was screaming … or otherwise speaking in a loud or boisterous manner … , nor does it establish that petitioner’s behavior triggered an affirmative response on the part of the incarcerated individuals observing the alleged argument … . Similarly, petitioner was found not guilty of fighting, and there were no other established disciplinary infractions that would give rise to a reasonable inference that his conduct was disruptive … . In short, as the misbehavior report fails to identify the manner in which petitioner’s conduct disturbed the order of the facility, we cannot say that respondent’s determination is supported by substantial evidence … . Matter of Hogan v Thompson, 2022 NY Slip Op 02470, Third Dept 4-14-22

 

You might also like
THE IMMEDIATE NEIGHBORS HAD STANDING TO CONTEST THE APPROVAL OF THE CONSTRUCTION OF A DOLLAR STORE; THE PLANNING BOARD DID NOT NEED TO SEND THE MATTER TO THE ZONING BOARD OF APPEALS TO INTERPRET A ZONING ORDINANCE WHICH WAS ONLY A GUIDELINE CONCERNING THE ALLOWED LENGTH OF A BUILDING FACADE; THE PLANNING BOARD TOOK THE REQUISITE HARD LOOK PURSUANT TO THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (THIRD DEPT).
HERE THE FACILITY REVIEW OFFICER VIEWED THE VIDEO EVIDENCE AND EXPRESSED THE CONCLUSION PETITIONER HAD VIOLATED PRISON RULES BEFORE THE DISCIPLINARY HEARING; THAT SAME OFFICER DECIDED PETITIONER’S ADMINISTRATIVE APPEAL; THAT SCENARIO VIOLATED DUE PROCESS; THE MISBEHAVIOR DETERMINATION WAS ANNULLED (THIRD DEPT).
Parol Evidence Demonstrated What Appeared to Be a Contract Was Not—There Was No Meeting of the Minds Re: the Consideration for the Contract
THERE WAS NO INDICATION ON THE FORM AND NO REGULATION REQUIRING CLAIMANT TO SUBMIT A SEPARATE RB-89 FORM FOR EACH CLAIM; THE BOARD THEREFORE ABUSED ITS DISCRETION WHEN IT REFUSED TO REVIEW THE WORKERS’ COMPENSATION LAW JUDGE’S (WCLJ’S) DECISION ON THAT GROUND (THIRD DEPT).
241 (6) Cause of Action Improperly Dismissed—Plaintiff Tripped on Piece of Metal Protruding from Stair
OFFICE LEASING BROKER WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).
POSSESSION OF SEXUAL PERFORMANCE OF A CHILD CONVICTIONS REVERSED, PHOTOGRAPHS DID NOT MEET STATUTORY CRITERIA, ALTHOUGH THE MAJORITY AFFIRMED DEFENDANT’S CONVICTION IN THIS RAPE, CRIMINAL SEXUAL ACT, AND POSSESSION OF SEXUAL PERFORMANCE BY A CHILD PROSECUTION, THE DISSENT WOULD HAVE REVERSED BECAUSE THE PHOTOGRAPHIC EXHIBITS UPON WHICH THE PROSECUTION RELIED WERE NOT PROPERLY AUTHENTICATED (THIRD DEPT).
ACTION SEEKING RESCISSION OF A CONSERVATION EASEMENT RESTRICTING DEVELOPMENT ON UPSTATE LAND WITHIN THE NEW YORK CITY WATERSHED PROPERLY DISMISSED; UNIQUE LAW RE: MODIFICATION OR EXTINGUISHMENT OF A CONSERVATION EASEMENT EXPLAINED.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

ALTHOUGH CLAIMANT WAS STRUCK BY A VEHICLE WHILE HE WAS RIDING HIS BICYCLE TO... THERE WAS NO INDICATION ON THE FORM AND NO REGULATION REQUIRING CLAIMANT TO...