Durland v. Selsky

Oct 17, 1996
Versions:232 A.D.2d 796
649 N.Y.S.2d 60
1996 N.Y. App. Div. LEXIS 10276

Appeal from a judgment of the Supreme Court (Lewis, J.), entered November 22, 1995 in Clinton County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

After engaging in a fist fight with another inmate, petitioner pleaded guilty to creating a disturbance and assaulting an inmate. He was sentenced to 36 months in the special housing unit, loss of privileges for the same period of time and 18 months loss of good time. Upon administrative appeal, the penalty was modified to 18 months in the special housing unit, loss of privileges for the same period of time and 18 months loss of good time. Petitioner commenced this CPLR article 78 proceeding challenging the modified penalty as excessive. Supreme Court upheld the penalty and dismissed the petition.

Given the serious nature of petitioner’s conduct, we do not find that the penalty imposed upon petitioner was excessive (see, Matter of Hoyer v Coombe, 224 AD2d 879). Moreover, based upon our review of the record, we find no merit to petitioner’s claim that the penalty was imposed in retaliation for petitioner’s failure to cooperate in an investigation of an unrelated inmate homicide. Consequently, we find no reason to disturb the administrative determination.

*797Mikoll, J. P., Mercure, White, Yesawich Jr. and Peters, JJ., concur. Ordered that the judgment is affirmed, without costs.