Orr v. Selsky

263 A.D.2d 742, 694 N.Y.S.2d 502, 1999 N.Y. App. Div. LEXIS 8049

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1999
• 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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was found guilty of violating the prison disciplinary rules that prohibit inmates from creating a disturbance which disrupts the order in any part of the facility and urging a demonstration detrimental to the order of the facility. The charges stemmed from petitioner’s conduct of loudly stating outside the messhall that “we ought to shut the whole * * * jail down”, apparently in response to restrictions of taking food from the messhall. Notwithstanding petitioner’s contention to the contrary, the detailed misbehavior report and testimony presented at the hearing provide substantial evidence to support the determination of guilt as to both charges (see, Matter of Mendez v Great Meadow Correctional Facility, 246 AD2d 702; Matter of Smith v Senkowski, 245 AD2d 909, 910, lv denied 91 NY2d 813). The correction officer who authored the misbehavior report testified that petitioner’s comment raised security concerns, especially in light of the fact that there had been rumors of an inmate strike. Contrary to petitioner’s assertion, testimony at the hearing establishes that other inmates were in the vicinity. Any conflicting testimony presented at the hearing merely created a credibility issue for the Hearing Officer to resolve (see, id.). Petitioner’s remaining contentions have been reviewed and found to be without merit.

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