Cruz v. Goord

273 A.D.2d 569, 709 N.Y.S.2d 682, 2000 N.Y. App. Div. LEXIS 6659

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 which found petitioner guilty of violating certain prison disciplinary rules.

Following a tier III hearing, petitioner was found guilty of creating a disturbance and making threats. The record reveals that petitioner, believing he was being ignored, shouted and kicked his cell door to gain attention. When this did not result in petitioner being moved to another cell, petitioner verbally threatened his cellmate with physical harm. In our view, the witnesses accounts of this conduct as well as petitioner’s admission that he threatened his cellmate, provide substantial evidence to support the determination of petitioner’s guilt (see, Matter of Gold v Bradt, 254 AD2d 674, lv denied 92 NY2d 819; Matter of Gibson v Selsky, 244 AD2d 739). Petitioner’s contention that these threats were a subterfuge to get him reassigned to a different cell only raised a credibility issue properly resolved by the Hearing Officer (see, Matter of Carter v Goord, 267 AD2d 522).

We also reject petitioner’s contention that his actions were justified because he was being treated unfairly. It is well settled that an inmate’s belief of unfair treatment does not justify a violation of prison disciplinary rules (see, Matter of Rivera v Smith, 63 NY2d 501).

Spain, J. P., Graffeo, Mugglin, Rose and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.