Valentine v. Goord

18 A.D.3d 997, 794 N.Y.S.2d 692, 2005 N.Y. App. Div. LEXIS 5171

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 12, 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 which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner commenced this CPLR article 78 proceeding challenging a tier III disciplinary determination finding him guilty of violating the prison disciplinary rules that prohibit disobeying a direct order, making threats and interference with an employee. The misbehavior report relates that, upon completion of the testimony portion of a tier II disciplinary hearing, petitioner refused the Hearing Officer’s orders to exit the room. Instead, petitioner “squared off” in front of the Hearing Officer and, pointing his finger, made a threatening remark. Petitioner’s conduct caused a delay in the completion of the tier II hearing. The misbehavior report, together with the corroborating testimony of its author, provide substantial evidence to support the determination of guilt (see Matter of Goncalves v Donnelly, 9 AD3d 721 [2004]; Matter of Lynch v Goord, 285 AD2d 878, 879 [2001] ). Petitioner’s contention that the misbehavior report was issued in retaliation for objections made at the tier II hearing created a credibility issue for the tier III Hearing Officer to resolve (see Matter of Rizzuto v Sullivan, 295 AD2d 780, 781 [2002] ; Matter of Perkins v Goord, 290 AD2d 700, 701 [2002]). Petitioner’s remaining contention has not been preserved for our review.

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