Opinion
2011-11-17
In the Matter of Nigel JOSEPH, Petitioner,v.Darwin LaCLAIR, as Superintendent of Franklin Correctional Facility, Respondent.
Nigel Joseph, Malone, petitioner pro se.Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Nigel Joseph, Malone, petitioner pro se.Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
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 which found petitioner guilty of violating a prison disciplinary rule.
Petitioner disobeyed a correction officer's directive to perform his porter duties and, as a result, was charged in a misbehavior report with refusing a direct order. Following a tier II disciplinary hearing, petitioner was found guilty of the charge, and the determination was affirmed upon administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The detailed misbehavior report provides substantial evidence supporting the determination of guilt ( see Matter of Applewhite v. Goord, 22 A.D.3d 985, 986, 802 N.Y.S.2d 389 [2005]; Matter of Loper v. Greene, 19 A.D.3d 947, 948, 797 N.Y.S.2d 190 [2005], lv. denied 5 N.Y.3d 713, 806 N.Y.S.2d 163, 840 N.E.2d 132 [2005] ). Petitioner's claim that he did not hear the order because he was arguing with another inmate presented a credibility issue for the Hearing Officer to resolve ( see Matter of Lamage v. Fischer, 58 A.D.3d 1045, 1046, 870 N.Y.S.2d 809 [2009]; Matter of Raqiyb v. Fischer, 50 A.D.3d 1287, 1288, 854 N.Y.S.2d 677 [2008] ). Therefore, we decline to disturb the determination.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.