Brown v. Keating , 766 N.Y.S.2d 407 ( 2003 )

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Rensselaer County) to review a determination of the Superintendent of the Rensselaer County Correctional Facility which found petitioner guilty of violating a correctional facility disciplinary rule.

Petitioner challenges a determination finding him guilty of violating the correctional facility disciplinary rule which prohibits menacing. The charges stem from petitioner’s threatening statements to a correction officer. We reject petitioner’s contention that because he was confined to his cell at the time of the incident, the statements could not be construed as menacing. The statements made were clearly meant to threaten the correction officer. Petitioner’s reliance on the definition of menacing as contained in Penal Law § 120.15 is misplaced inasmuch as he was charged with a disciplinary rule infraction and not a criminal offense. To the extent that petitioner challenges the resulting order that physical restraints be used when he is removed from his cell as being retaliatory in nature, given his threatening conduct we find his contention to be without merit (see 7 NYCRR 250.2 [h]).

Mercure, J.P., Spain, Carpinello, Rose and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.