Opinion
526478
11-15-2018
In the Matter of Ronald JOHNSON, Petitioner, v. William LEE, as Superintendent of Eastern N.Y. Correctional Facility, Respondent.
Ronald Johnson, Napanoch, petitioner pro se. Barbara D. Underwood, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Ronald Johnson, Napanoch, petitioner pro se.
Barbara D. Underwood, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Devine, Aarons and Pritzker, JJ.
MEMORANDUM AND JUDGMENT
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with disobeying a direct order, harassing an employee, interfering with an employee and violating frisk procedures. The charges stemmed from a pat frisk of petitioner during which petitioner – without being instructed to do so – loosened his belt and dropped his pants to his knees, exposing his boxer shorts. When the correction officer questioned petitioner's actions, petitioner reportedly responded, "The way you were massaging me[,] I was making it easier for you." Following a tier II disciplinary hearing, petitioner was found guilty of harassment and violating frisk procedures and not guilty of the remaining charges, and a penalty was imposed. Upon petitioner's administrative appeal, the determination was affirmed. Petitioner thereafter commenced this CPLR article 78 proceeding to challenge respondent's determination.
Petitioner's initial claim – that the disciplinary hearing was not completed in a timely fashion – is unpreserved for our review as petitioner did not raise this issue at the hearing (see Matter of Watson v. Gardner, 156 A.D.3d 1050, 1051, 66 N.Y.S.3d 545 [2017] ; Matter of Taylor v. Fischer, 80 A.D.3d 1037, 1037, 914 N.Y.S.2d 691 [2011] ). As to the merits, we find that the detailed misbehavior report – standing alone – constituted substantial evidence to support the finding that petitioner was guilty of harassment and violating frisk procedures (see e.g. Matter of Thompson v. Kirkpatrick, 160 A.D.3d 1234, 1235, 71 N.Y.S.3d 910 [2018] ; Matter of Williams v. Kirkpatrick, 153 A.D.3d 996, 996, 56 N.Y.S.3d 916 [2017] ; Matter of Herbin v. Lacy, 252 A.D.2d 608, 609, 675 N.Y.S.2d 233 [1998] ). Contrary to petitioner's assertion, "[t]he rule prohibiting harassment is sufficiently broad to encompass ... insolent behavior" ( Matter of Wigfall v. New York State Dept. of Corr. & Community Supervision, 160 A.D.3d 1332, 1333, 75 N.Y.S.3d 341 [2018] ; see 7 NYCRR 270.2 [B][8][ii] ), and petitioner's response to the correction officer's inquiry falls within the ambit of the rule. Additionally, petitioner's unsolicited actions during the course of the pat frisk supports the finding of guilt as to his violation of frisk procedures, and his contrary testimony and explanation for his behavior presented a credibility issue for the Hearing Officer to resolve (see e.g. Matter of Medina v. Annucci, 141 A.D.3d 1052, 1053, 35 N.Y.S.3d 663 [2016] ; Matter of Grant v. Rock, 122 A.D.3d 1225, 1226, 997 N.Y.S.2d 541 [2014] ). Finally, we discern no inconsistency between the finding that petitioner was guilty of violating frisk procedures but not guilty of refusing a direct order (see generally Matter of Darrett v. Annucci, 140 A.D.3d 1419, 1420, 35 N.Y.S.3d 503 [2016] ). Petitioner's remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit.
Garry, P.J., Egan Jr., Devine, Aarons and Pritzker, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.