Citation Numbers: 287 A.D.2d 906, 731 N.Y.S.2d 559, 2001 N.Y. App. Div. LEXIS 9965
Filed Date: 10/25/2001
Status: Precedential
Modified Date: 11/1/2024
—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Franklin County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner challenges a determination finding him guilty of violating the prison disciplinary rules which prohibit creating a disturbance, committing arson, destroying State property, participating in actions detrimental to the facility and refusing
Turning to the remaining charges, we reject petitioner’s assertion that the remaining charges were not supported by substantial evidence. The misbehavior report relates that a fire was started in petitioner’s cell destroying State-issued mattresses, sheets, pillowcases and blankets. Petitioner was in the cell with his cellmate at the time of the incident and petitioner’s lack of exclusive control of the area does not exonerate him of guilt (see, e.g., Matter of Fugate v Goord, 277 AD2d 626, 627; Matter of Fernandez v Stinson, 251 AD2d 887, 888). The misbehavior report, testimony presented at the hearing and the videotape, together with the inferences to be drawn therefrom, provide substantial evidence to support the remaining charges (see, Matter of Scott v Goord, 268 AD2d 631, 632). Petitioner’s remaining contentions, including that he was denied meaningful employee assistance, his challenge to the adequacy of the misbehavior report and his claim of Hearing Officer bias, have been reviewed and found to be either unpreserved for our review or lacking in merit.
Crew III, J. P., Peters, Spain, Mugglin and Rose, JJ., concur. Adjudged that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of the charge of refusing a direct order; petition granted to that extent, respondents are directed to expunge all references thereto from petitioner’s institutional record and matter remitted to respondents for further proceedings not inconsistent with this Court’s decision; and, as so modified, confirmed.