Gogola v. Reynolds

212 A.D.2d 928, 623 N.Y.S.2d 177, 1995 N.Y. App. Div. LEXIS 1585

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.

Upon review of the record, we find that there is substantial evidence to support the determination that petitioner was guilty of disobeying a direct order and assaulting a correction officer. We further find that petitioner’s claim of justification was properly considered in mitigation of the penalty imposed upon petitioner and not as a defense to the charge of assault. Accordingly, there is no reason to disturb the determination of guilt.

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