Smith v. Portuondo, 309 A.D.2d 1028 (N.Y. App. Div. 2003). · Go Syfert
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Smith v. Portuondo, 309 A.D.2d 1028 (N.Y. App. Div. 2003). Cases Citing This Book View Copy Cite
14 citation events (14 in the last 25 years) across 1 distinct court.
Strongest positive: Curry v. Fischer (nyappdiv, 2014-01-23)
Top citers, strongest first. 11 distinct citers. How cited ↗
discussed Cited as authority (rule) Curry v. Fischer
N.Y. App. Div. · 2014 · confidence medium
Given that the incident originated at petitioner’s cell, as the report indicates, and was then moved to the barbershop area for the ensuing strip frisk, as mentioned in the body of the report, we find petitioner’s contention unavailing and that the report contained sufficient detail to enable him to prepare a defense (see generally Matter of Modlenaar v Goord, 21 AD3d 1190, 1191 [2005]; Matter of Smith v Portuondo, 309 AD2d 1028, 1028 [2003]; compare Matter of Simmons v Fischer, 105 AD3d 1288, 1289 [2013]).
discussed Cited as authority (rule) Curry v. Fischer
N.Y. App. Div. · 2014 · confidence medium
Given that the incident originated at petitioner’s cell, as the report indicates, and was then moved to the barbershop area for the ensuing strip frisk, as mentioned in the body of the report, we find petitioner’s contention unavailing and that the report contained sufficient detail to enable him to prepare a defense (see generally Matter of Modlenaar v Goord, 21 AD3d 1190, 1191 [2005]; Matter of Smith v Portuondo, 309 AD2d 1028, 1028 [2003]; compare Matter of Simmons v Fischer, 105 AD3d 1288, 1289 [2013]).
discussed Cited as authority (rule) Washington v. Napoli
N.Y. App. Div. · 2009 · confidence medium
Petitioner’s claim of retaliation presented a credibility determination for the Hearing Officer to resolve (see Matter of Davis v Goord, 34 AD3d 1027 [2006]), and petitioner’s requested witnesses properly were denied in light of the fact that they had no firsthand knowledge of the underlying incident (see Matter of Smith v Portuondo, 309 AD2d 1028, 1029 [2003]).
discussed Cited as authority (rule) Bailey v. Walsh (2×)
N.Y. App. Div. · 2006 · confidence medium
The misbehavior report, together with the testimony of the authoring correction officer and an inmate witness who was present during the incident, provide substantial evidence in support of the determination (see Matter of Modlenaar v Goord, 21 AD3d 1190, 1190-1191 [2005]; Matter of Smith v Portuondo, 309 AD2d 1028, 1029 [2003]).
cited Cited as authority (rule) Thomas v. Selsky
N.Y. App. Div. · 2005 · confidence medium
Review Comm., 5 AD3d 890, 891 [2004]; Matter of Smith v Portuondo, 309 AD2d 1028, 1029 [2003]).
discussed Cited as authority (rule) Modlenaar v. Goord
N.Y. App. Div. · 2005 · confidence medium
His complaint that the first report did not adequately describe the disturbance charge is without merit inasmuch as the misbehavior report provided petitioner with sufficient detail, including the date, time, location and a thorough description of the incident, to afford him an opportunity to prepare a defense (see Matter of Smith v Portuondo, 309 AD2d 1028, 1028 [2003]).
discussed Cited as authority (rule) Rodriguez v. Goord
N.Y. App. Div. · 2005 · confidence medium
Contrary to petitioner’s claim, the misbehavior report contained sufficient detail to give petitioner adequate notice of the charge and “afford him an opportunity to prepare a defense” (Matter of Smith v Portuondo, 309 AD2d 1028, 1028 [2003] ; see Matter of Jackson v Smith, 13 AD3d 685, 685-686 [2004] , lv denied 4 NY3d 707 [2005]).
discussed Cited as authority (rule) Wigfall v. Goord
N.Y. App. Div. · 2005 · confidence medium
Contrary to petitioner’s claim, the misbehavior report was sufficiently detailed concerning the timing of events in question to provide him with adequate notice of the charges (see Matter of Hernandez v Selsky, 9 AD3d 662, 663 [2004], lv dismissed and denied 3 NY3d 698 [2004]; Matter of Smith v Portuondo, 309 AD2d 1028, 1028 [2003]).
discussed Cited as authority (rule) Jackson v. Smith
N.Y. App. Div. · 2004 · confidence medium
Inasmuch as the report provided enough details of the investigation to “afford [petitioner] an opportunity to prepare a defense” (Matter of Smith v Portuondo, 309 AD2d 1028, 1028 [2003]; see Matter of LaBounty v Goord, 245 AD2d 675, 676 [1997], appeal dismissed 91 NY2d 1002 [1998]), we find that it provided adequate notice.
discussed Cited as authority (rule) Thomas v. Selsky
N.Y. App. Div. · 2004 · confidence medium
Contrary to petitioner’s claim, the misbehavior report contained sufficient information to give him adequate notice of the charges (see Matter of Patterson v Selsky, 3 AD3d 814, 815 [2004]; Matter of Smith v Portuondo, 309 AD2d 1028, 1028 [2003]) and, under the circumstances presented, was not required to be endorsed by another correction officer (see Matter of Di Rose v Coombe, 233 AD2d 799, 800 [1996]).
discussed Cited as authority (rule) Hernandez v. Selsky
N.Y. App. Div. · 2004 · confidence medium
The misbehavior report, which is not required to set forth in evidentiary detail every aspect of the case, set forth the date, time and place of the incident and described the conduct leading to the charges (see Matter of Sepe v Goord, 1 AD3d 667, 667 [2003]; Matter of Smith v Portuondo, 309 AD2d 1028, 1028 [2003]; Matter of Green v Goord, 308 AD2d 618 [2003], lv denied 1 NY3d 505 [2003]).
Retrieving the full opinion text from the archive…
In the Matter of Kevin Smith
v.
Leonard Portuondo, as Superintendent of Shawangunk Correctional Facility
Appellate Division of the Supreme Court of the State of New York.
Oct 23, 2003.
309 A.D.2d 1028
2003 N.Y. App. Div. LEXIS 10947
Cited by 13 opinions  |  Published

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 challenges a determination finding him guilty of violating the prison disciplinary rules that prohibit disobeying a direct order, tampering with state property and property misuse or damage.* According to the misbehavior report, the charges stem from petitioner’s conduct in a general business class wherein he was heard loudly giving his password and user name to another inmate in violation of known class rules. A review of petitioner’s computer account reveals that the inmate who received petitioner’s password then attempted twice to install templates on the facility’s computer server. The record establishes that petitioner was aware that only the instructor or network administrator could install a new program onto the computer, otherwise damage to the computer system could result.

We are unpersuaded by petitioner’s assertion that the misbehavior report did not give him adequate notice of the charges. A review of the misbehavior report establishes that the time, date and location of the alleged misconduct is noted, together with a sufficient description of the incident giving rise to the charges. The misbehavior report provided petitioner with sufficient detail to afford him an opportunity to prepare a defense (see Matter of Quintana v Selsky, 268 AD2d 624 [2000]; Matter of La Bounty v Goord, 245 AD2d 675 [1997], appeal [*1029] dismissed 91 NY2d 1002 [1998]). Furthermore, the misbehavior report and testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Foster v Coughlin, 76 NY2d 964 [1990]). Lastly, despite petitioner’s contention to the contrary, we find no error in the Hearing Officer denying petitioner’s request to call a witness inasmuch as the witness had no first-hand knowledge of the incident which was the subject of the misbehavior report (see Matter of Johnson v Goord, 297 AD2d 881 [2002]; Matter of Perkins v Goord, 257 AD2d 821 [1999]).

Cardona, P.J., Mercure, Crew III, Peters and Carpinello, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Petitioner was also charged with and found not guilty of property in an unauthorized area and altered items.