Evans v. Rivera

252 A.D.2d 706, 675 N.Y.S.2d 427, 1998 N.Y. App. Div. LEXIS 8200

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 9, 1998
• Status: Published

Opinion

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

Petitioner was found guilty of violating prison disciplinary rules that prohibit encouraging others to participate in a work stoppage, disobeying a direct order and inflicting bodily harm on himself. Following an administrative appeal, the charge of inflicting harm was dismissed.

According to the misbehavior report which was authored by a correction officer who witnessed petitioner’s conduct, petitioner refused to move logs and encouraged others to do the same until gloves were issued. Only after receiving three direct orders to start working did petitioner do so. Contrary to petitioner’s contention, the detailed misbehavior report provides substantial evidence to support the charges against him (see, Matter of Foster v Coughlin, 76 NY2d 964). Petitioner’s denial of the charges merely presented a credibility issue for resolution by the Hearing Officer (see, Matter of Mendez v Great Meadow Correctional Facility, 246 AD2d 702). Even if petitioner’s remaining contentions were preserved for our review— including his claim of Hearing Officer bias — we would find them to be lacking in merit.

Mercure, J. P., Yesawich Jr., Spain, Carpinello and Graffeo, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.