Hop Wah v. Coughlin

162 A.D.2d 887, 558 N.Y.S.2d 235, 1990 N.Y. App. Div. LEXIS 7910

Opinion

Kane, J. P.

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 a prison disciplinary rule.

Petitioner was charged with and found guilty of violating prison disciplinary rule 100.10 prohibiting assault (see, 7 NYCRR 270.1 [B] [1] [i]) after an incident during which he twice threw a cup of milk onto a correction officer. The sole basis for petitioner’s challenge to the determination is that the act, admitted to by petitioner, did not constitute an assault, as envisioned by the rule. We disagree. In our view, an assault by an inmate need not cause or intend injury and we find that the abusive throwing of any liquid onto a correction officer constitutes an assault pursuant to rule 100.10 (see, Matter of Hop Wah v Coughlin, 160 AD2d 1054; Matter of Curcio v Jones, 144 AD2d 185, 186). Furthermore, contrary to petitioner’s argument, rule 100.10 provides sufficiently clear notice that throwing milk at a correction officer is assaultive behavior and therefore forbidden (see, Matter of Hop Wah v Coughlin, supra; Matter of Hobson v Coughlin, 137 AD2d 940, 941). Accordingly, the petition lacks merit.

Determination confirmed, and petition dismissed, without costs. Kane, J. P., Casey, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.