Tarbell v. Senkowski

258 A.D.2d 875, 682 N.Y.S.2d 645

Opinion

—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Clinton County) to review a determination of respondents which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, an inmate, was found guilty of violating the prison disciplinary rule which prohibits inmates from verbally harassing a facility employee. Included in the evidence presented at petitioner’s disciplinary hearing was a detailed misbehavior report relating that petitioner demanded to talk to a correctional facility nurse as she walked past his cell to conduct a sick call for another inmate. The nurse who authored the report testified that when she informed petitioner that she had not received his request for a sick call, petitioner loudly stated, ‘You’ve got an attitude bitch. Do your job”. In our view, this proof and the corroborating testimony of a correction officer who heard petitioner make the statements were sufficient to constitute substantial evidence of petitioner’s guilt (see, Matter of Harrell v O’Keefe, 241 AD2d 616). The conflicting testimony of petitioner and his inmate witness merely presented a credibility issue which was appropriately resolved by the Hearing Officer (see, Matter of Purdy v Senkowski, 242 AD2d 804). We have reviewed petitioner’s remaining contention that the Hearing Officer was biased and find it to be without merit.

Mikoll, J. P., Mercure, Crew III, Peters and Spain, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.