Binns v. Goord

Nov 24, 2004
Versions:12 A.D.3d 1006
784 N.Y.S.2d 907
2004 N.Y. App. Div. LEXIS 14277

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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner challenges a determination finding him guilty of *1007violating prison disciplinary rules that prohibit violent conduct, possession of a weapon and disobeying a direct order. The misbehavior report relates that petitioner was observed swinging a broom at a group of inmates in a violent manner. Petitioner then failed to comply with a correction officer’s direct order to drop the broom, and he swung it again. Thereafter petitioner complied with the correction officer’s second order to drop the broom. Contrary to petitioner’s contention, the misbehavior report and corroborating testimony at the hearing provide substantial evidence to support the determination (see Matter of Black v Goord, 302 AD2d 648 [2003]; Matter of Walton v Goord, 290 AD2d 764 [2002]). To the extent that petitioner and other inmate witnesses denied the correction officer’s version of events and asserted that the misbehavior report was fabricated, these claims presented a credibility issue for the Hearing Officer to resolve (see Matter of Harris v Corcoran, 261 AD2d 740 [1999]). Petitioner’s contention that he did not hear the initial order to drop the broom is raised for the first time on this appeal and, therefore, is not preserved for our review (see Matter of Torres v Selsky, 8 AD3d 775 [2004]).

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