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IN RE: Shawn CORNWALL (2001)

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Shawn CORNWALL, Petitioner, v. Glenn S. GOORD, as Commissioner of Correctional Services, Respondent.

Decided: October 25, 2001

Before:  CARDONA, P.J., PETERS, SPAIN, ROSE and LAHTINEN, JJ. Shawn Cornwell, Pine City, petitioner pro se. Eliot Spitzer, Attorney-General (Marcus J. Mastracco of counsel), Albany, 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 finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner was found guilty of violating the prison disciplinary rules that prohibit violent conduct and assault on a staff member.   The misbehavior report related that petitioner had been escorted from his cell in manacles to facilitate a routine cell frisk.   Once the search had been completed, petitioner refused to return to his cell and struck one of the escorting correction officers under the left eye with his cuffed hands.   Four additional officers were needed to subdue petitioner and return him to his cell.   Introduced in evidence at the disciplinary hearing were the misbehavior report and the testimony of the correction officer who was the author of the report and who had been the victim of petitioner's assault.   This was sufficient to constitute substantial evidence supporting the determination of petitioner's guilt (see, Matter of Hinckson v. Selsky, 259 A.D.2d 812, 687 N.Y.S.2d 200, lv. dismissed 94 N.Y.2d 782, 700 N.Y.S.2d 419, 722 N.E.2d 498).   Petitioner's contention that he was denied the right to present documentary evidence in the form of a videotape of the incident in question is meritless as the record discloses that such a tape does not exist (see, Matter of Mena v. Goord, 275 A.D.2d 828, 713 N.Y.S.2d 297;  Matter of Donato v. Duncan, 272 A.D.2d 767, 768, 708 N.Y.S.2d 914).   Petitioner's remaining contentions, including his assertion of Hearing Officer bias, have been examined and found to be either without merit or unpreserved for our review.

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

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