Henry v. Coombe

237 A.D.2d 848, 656 N.Y.S.2d 948, 1997 N.Y. App. Div. LEXIS 2754

Opinion

Peters, J.

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

Petitioner, a prison inmate, refused to comply with a correction officer’s order to leave his cell, during an inmate work stoppage. Following a disciplinary hearing, he was found guilty of refusing a direct order, engaging in a demonstration and violating a movement regulation.

Footnotes

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* Petitioner commenced this CPLR article 78 proceeding challenging this determination which was transferred to this Court for review.

Based upon our review of the record, we find that the administrative determination is supported by substantial evidence. Petitioner admitted at the disciplinary hearing that he refused a correction officer’s order to leave his cell while there was an inmate work stoppage in progress. Although he stated that he did so out of fear for his safety, it was for the Hearing Officer to evaluate the credibility of this testimony (see, Matter of Young v Coombe, 227 AD2d 799; Matter of Islar v Coombe, 226 AD2d 851). Given petitioner’s testimony and the statements contained in the misbehavior report which was prepared by a correction officer who witnessed the incident, we find no reason to disturb the administrative determination of guilt. Likewise, we find no merit to petitioner’s claim that he was denied effective employee assistance. There is nothing in the record to indicate that the documents which petitioner claims he requested, i.e., unusual incident reports and confidential records, even existed. Finally, we reject petitioner’s contention that the Hearing Officer was biased inasmuch as our review of the hearing transcript discloses that he conducted the hearing in a fair and impartial manner (see, Matter of Robles v Coombe, 234 AD2d 847).

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

Petitioner pleaded guilty to refusing a direct order and was found not guilty of being out of place.