Wilson v. Dubray

54 A.D.3d 1089, 866 N.Y.S.2d 367

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 11, 2008
• 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 engaged in a physical altercation with another inmate and, when he ignored a correction officer’s directive to stop fighting, the response team had to be called to break up the fight. As a result, petitioner was charged in a misbehavior report with fighting, engaging in violent conduct and refusing a direct order. He pleaded guilty to refusing a direct order and was found guilty of all charges following a tier III disciplinary hearing. The determination was later affirmed on administrative appeal and this CPLR article 78 proceeding ensued.

We confirm. Initially, inasmuch as petitioner pleaded guilty to refusing a direct order, he is precluded from challenging the evidence supporting the determination in this regard (see Matter of Britt v Goord, 40 AD3d 1321, 1322 [2007]; Matter of Price v Goord, 29 AD3d 1203, 1204 [2006]). Moreover, the misbehavior report, documentary evidence and hearing testimony provide substantial evidence supporting the determination finding petitioner guilty of the remaining charges (see Matter of Green v Goord, 26 AD3d 562, 563 [2006]). Even if petitioner did not initiate the altercation, this does not absolve him of guilt under the circumstances presented (see Matter of Gloster v Goord, 278 AD2d 568, 568 [2000], appeal dismissed 96 NY2d 825 [2001]). Therefore, we find no reason to disturb the determination at hand.

Mercure, J.P, Peters, Rose, Malone Jr. and Kavanagh, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.