Sheils v. Goord

16 A.D.3d 866, 792 N.Y.S.2d 641, 2005 N.Y. App. Div. LEXIS 2655

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 17, 2005
• 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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner became disruptive, used profanities and refused to comply with a correction officer’s directives while being processed for a visit with his fiancée. He was charged in a misbehavior report with making threats, refusing a direct order, engaging in violent conduct and creating a disturbance, and was found guilty of the charges following a tier III disciplinary hearing. The determination was upheld on administrative appeal, but the penalty was modified. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, the testimony of the correction officers who witnessed the incident, as well as petitioner’s own admissions, constitute substantial evidence supporting the determination of guilt (see Matter of McFadden v Armmitage, 1 AD3d 670, 670 [2003]; Matter of Saunders v La Bombard, 257 AD2d 840, 840 [1999]). Contrary to petitioner’s claim, the record reveals that the Hearing Officer did consider evidence of petitioner’s mental status in making his determination. Petitioner’s remaining contentions have either not been preserved for our review, have been abandoned or are lacking in merit.

Mercure, J.P., Peters, Mugglin, Lahtinen and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.