Price v. Goord

308 A.D.2d 625, 764 N.Y.S.2d 226, 2003 N.Y. App. Div. LEXIS 9327

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.

Petitioner challenges a determination finding him guilty of violating the prison disciplinary rules against creating a disturbance and attempted assault. As related in the misbehavior report and testimony of the reporting correction officer, petitioner was seen swinging a fence board with a nail in it at a retreating unknown inmate in the prison yard where approximately 500 other inmates were present. Contrary to petitioner’s contention, the misbehavior report, testimony from the reporting correction officer and the unusual incident report provide substantial evidence to support the determination of guilt (see Matter of Davis v Goord, 302 AD2d 836 [2003]; Matter of Connell v Goord, 298 AD2d 748 [2002]). Although petitioner was injured by an unidentified inmate in the prison yard, we reject petitioner’s assertion that this precludes a finding that he created a disturbance. To the extent that petitioner asserts that he was incorrectly found guilty of assault rather than attempted assault because he did not strike anyone with the fence board, the charge in the misbehavior report, of which petitioner was found guilty, specifies petitioner’s attempt to inflict harm. In any event, the rule violation with which petitioner was charged specifically prohibits both assaults and “attempt [s] to inflict bodily harm upon any other inmate” (7 NYCRR 270.2 [B] [1] [i]).

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