Felder v. Herbert

May 7, 1999
Versions:261 A.D.2d 959
689 N.Y.S.2d 922
1999 N.Y. App. Div. LEXIS 5074

—Determination unanimously confirmed without costs and petition dismissed. Memorandum: Petitioner was found guilty of violating inmate rule 107.11 (7 NYCRR 270.2 [B] [8] [ii] ¡harassment]) based on an incident in which he allegedly told a correction officer to “check” himself and to “dig in because your [sic] not that tough”. Petitioner admitted that he made the first part of that statement, but denied making the latter.

Petitioner contends that, even if he made the statement in question, he is not guilty of harassment because harassment refers to repeated or persistent attacks. The regulation, however, defines harassment as “using insolent, abusive, or obscene language or gestures” (7 NYCRR 270.2 [B] [8] [ii]). The Hearing Officer, relying on the misbehavior report, concluded that petitioner was guilty of harassment. We agree (cf., Matter of Brown v Coughlin, 168 AD2d 947). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Erie County, Whelan, J.) Present — Denman, P. J., Green, Pine, Scudder and Balio, JJ.