Leake v. Goord

289 A.D.2d 752, 733 N.Y.S.2d 923, 2001 N.Y. App. Div. LEXIS 12137

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 13, 2001
• Status: Published

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 which found petitioner guilty of violating certain prison disciplinary rules.

Following a disciplinary hearing and administrative review, petitioner was ultimately found guilty of refusing a direct order and violating facility movement regulations for failing to attend his morning work program as scheduled; a two-month penalty in the special housing unit with corresponding loss of privileges and good time credit was imposed. Contrary to petitioner’s assertion, substantial evidence supports the determination of guilt. Petitioner’s contention that his failure to comply with the direct order to go to work was justified because he feared retaliation from other inmates created a credibility issue for the Hearing Officer to resolve (see, Matter of Harris v Goord, 284 AD2d 841; Matter of McMillian v Goord, 252 AD2d 645). In any event, petitioner is required to comply with a correction officer’s directive without hesitation (see, Matter of McMillian v Goord, supra).

Lastly, even if preserved for our review, we would find petitioner’s remaining contentions, including his claims that he was denied the right to present a relevant witness and that the hearing was improperly commenced, to be without merit.

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