X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Decided and Entered: December 31, 2003 93853 In the Matter of HENRY MARCIAL, Petitioner, v MEMORANDUM AND JUDGMENT GLENN S. GOORD, as Commissioner of Correctional Services, Respondent. ________________________________ Calendar Date: November 26, 2003 Before: Crew III, J.P., Peters, Carpinello, Mugglin and Rose, JJ. __________ Henry Marcial, Malone, petitioner pro se. Eliot Spitzer, Attorney General, Albany (Nancy A. Spiegel of counsel), for respondent. __________ 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 was the subject of two misbehavior reports arising out of a fight with another inmate. In the course of the altercation, petitioner was observed making slashing motions toward the other inmate with a metallic object between his thumb and forefinger. Both men ignored repeated orders to stop fighting and petitioner refused to obey an order to drop his weapon. When a correction officer attempted to separate the inmates, petitioner struck him in the head. After they were separated, a weapon fashioned from a razor was found on the floor. A disciplinary hearing ensued resulting in a determination finding petitioner guilty of violating the prison disciplinary rules prohibiting assault on a staff member, assault on an inmate, fighting, refusing to obey direct orders and possession of a weapon. Substantial evidence supports this determination in the form of the two misbehavior reports (both of which were written by correction officers who not only witnessed the incident in question, but had physically participated in the efforts to end it), the unusual incident report, photographs showing the injuries incurred by petitioner, the other inmate and the correction officer, and the hearing testimony given by the two reporting officers as well as the testimony of a third officer who witnessed petitioner in the act of striking an officer (see Matter of Pope v Goord, 307 AD2d 563 [2003]; Matter of Johnson v Goord, 298 AD2d 737 [2002]). Further evidence was provided by petitioner’s own testimony wherein he admitted that he had engaged in the fight and had refused to obey orders to stop (see Matter of McCants v Murphy, 301 AD2d 713, 714 [2003]). Petitioner’s contention that he was innocent of the remaining charges presented an issue of credibility for resolution by the Hearing Officer (see Matter of Williams v Goord, 308 AD2d 614 [2003]). The assertion of hearing officer bias is not supported by the record which discloses that the hearing was conducted in a fair and impartial manner. The Hearing Officer’s characterization of petitioner’s conduct during the hearing as obstructionist does not warrant a contrary view; nor is there any indication that the outcome of the hearing resulted from any factor other than the evidence presented against petitioner (see Matter of Miller v Costello, 304 AD2d 916, 917 [2003]). The remaining contentions raised herein have been examined and found to be without merit. Crew III, J.P., Peters, Carpinello, Mugglin and Rose, JJ., concur. ADJUDGED that the determination is confirmed, without costs, and petition dismissed. ENTER: Michael J. Novack Clerk of the Court

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now
September 18, 2024 - September 19, 2024
Dallas, TX

Join General Counsel and Senior Legal Leaders at the Premier Forum Designed For and by General Counsel from Fortune 1000 Companies


Learn More
September 24, 2024
Chicago, IL

Women, Influence & Power in Law Awards honors women lawyers who have made a remarkable difference in the legal profession.


Learn More
September 23, 2024 - September 25, 2024
Chicago, IL

WIPL is the original global forum facilitating women-to-women exchange on leadership and legal issues.


Learn More

A prominent AV-rated Education Law firm seeks an associate with 5+ years experience. The role will primarily involve advice and counsel in ...


Apply Now ›

Associate attorney position at NJ Immigration Law firm: Leschak & Associates, LLC, based in Freehold, NJ, is looking for a full time ass...


Apply Now ›

Javerbaum Wurgaft, a large civil litigation firm with nine (9) offices, seeks: Plaintiff Personal Injury Attorney for Northern New Jersey of...


Apply Now ›