Harris v. Goord

284 A.D.2d 841, 726 N.Y.S.2d 603, 2001 N.Y. App. Div. LEXIS 6873

Opinion

—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Franklin 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 prohibiting inmates from participating in a planned work stoppage, refusing a direct order and refusing an assigned program. Upon administrative appeal, the charge of refusing an assigned program was dismissed and the penalty imposed was modified. Petitioner commenced this CPLR article 78 proceeding challenging the determination of guilt on the remaining charges.

We find that the misbehavior report, together with the testimony adduced at the hearing, constitutes substantial evidence to support the determination of guilt (see, Matter of Danaher v Coombe, 242 AD2d 754; Matter of Grant v Coombe, 240 AD2d 784). Petitioner’s assertion that he was justified in refusing to leave his cell and report to work based on his expressed fear of retaliation from other inmates presented a credibility issue which the Hearing Officer resolved against him (see, id.). Likewise, we reject petitioner’s assertion that he was denied the right to call certain witnesses as the record supports the Hearing Officer’s determination that the testimony of those witnesses would have been irrelevant to the charges (see, Matter of Grant v Coombe, supra). Petitioner’s remaining contentions have been examined and, to the extent preserved, found to be without merit.

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