Brodie v. Goord

304 A.D.2d 924, 758 N.Y.S.2d 414, 2003 N.Y. App. Div. LEXIS 3848

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 10, 2003
• Status: Published

Opinion

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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Following a tier III hearing, petitioner was found guilty of violating the prison disciplinary rules that prohibit violent conduct, assaulting staff and harassment. Petitioner also pleaded guilty at the hearing to refusing a direct order. The misbehavior report relates that at petitioner’s request, the cook handing out the sugar in the early morning chow line gave petitioner extra packets of sugar. Petitioner then directed a profanity at the cook and threw two sugar packets at him, hitting the cook in the face. Petitioner thereafter refused the cook’s order to produce his identification card requiring a correction officer to come help with the situation. Contrary to petitioner’s contention, the misbehavior report, the medical reports of the cook’s injuries and the testimony at the hearing, including petitioner’s own admissions, provide substantial evidence to support the determination of guilt (see Matter of McCants v Murphy, 301 AD2d 713 [2003]; Matter of Dover v Goord, 287 AD2d 815 [2001]).

* Petitioner’s conflicting account of the events created a credibility issue which was for the Hearing Officer to resolve (see Matter of Johnson v Goord, 298 AD2d 737 [2002]). Petitioner’s remaining contentions, including his claim of hearing officer bias, have been reviewed and found to be without merit.

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

Given petitioner’s plea of guilty to the charge of refusing a direct order, he does not challenge the evidentiary basis for this determination of guilt (see Matter of La Banca v Goord, 297 AD2d 868 [2002]).