Jackson v. Smith

49 A.D.3d 933, 852 N.Y.2d 492

Opinion

Following a tier II disciplinary hearing, petitioner was found guilty of disobeying a direct order, being out of place and leaving an assigned area without authorization. Upon administrative appeal, the charge of disobeying a direct order was dismissed, but the determination was otherwise affirmed and the penalty imposed was not modified. This CPLR article 78 proceeding ensued.

Contrary to petitioner’s contentions, the misbehavior report and the hearing testimony of the correction officer who authored it provide substantial evidence to support the determination finding him guilty of being out of place and leaving an assigned area without authorization (see Matter of Galdamez v Goord, 43 AD3d 1237, 1238 [2007]; Matter of Brown v Katz, 26 AD3d 559, 559 [2006]). Petitioner’s contrary testimony created a credibility issue for the Hearing Officer to resolve (see Matter of Ohnmacht v Goord, 47 AD3d 1030 [2008]), as did his claim that the charges were issued in retaliation for a grievance he had filed (see Matter of Porter v Goord, 47 AD3d 978, 979 [2008]).

Petitioner’s remaining claims, including his claim that the hearing was not timely completed, have been reviewed and found to be without merit.

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