IN RE: Roberto MARTINEZ

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

IN RE: Roberto MARTINEZ, Petitioner, v. Peter LACY, as Superintendent of Bare Hill Correctional Facility, Respondent.

Decided: October 29, 1998

Before CARDONA, P.J., MIKOLL, MERCURE, WHITE and SPAIN, JJ. Roberto Martinez, Malone, petitioner in person. Dennis C. Vacco, Attorney-General (Andrew D. Bing of counsel), Albany, for respondent.

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Franklin County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, an inmate, was found guilty of assaulting an inmate, fighting and engaging in violent conduct after he participated in an assault on another inmate.   According to the misbehavior report, the victim stated that petitioner punched him several times while another inmate choked him.   The correction officer who authored the misbehavior report also prepared a memorandum describing his investigation into the incident and his resulting conclusions.   Based upon the victim's emotional state during the interview, the nature of his injuries and his willingness to testify at petitioner's disciplinary hearing, the correction officer concluded that the victim's allegations were true.   In our view, this evidence, although hearsay, was sufficiently relevant and probative to constitute substantial evidence of petitioner's guilt (see, Matter of Nina v. Coughlin, 191 A.D.2d 942, 595 N.Y.S.2d 833, lv. denied 82 N.Y.2d 651, 601 N.Y.S.2d 581, 619 N.E.2d 659).   Finally, we find that the misbehavior report contained adequate detail regarding petitioner's role in the incident (see, Matter of Rodriguez v. Coombe, 234 A.D.2d 663, 650 N.Y.S.2d 845) and that petitioner was not deprived of the right to call witnesses (see, Matter of Bryant v. Mann, 160 A.D.2d 1086, 553 N.Y.S.2d 569, lv. denied 76 N.Y.2d 706, 560 N.Y.S.2d 988, 561 N.E.2d 888).   We have examined petitioner's remaining contentions and find them to be lacking in merit.

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

MEMORANDUM DECISION.

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