Rush v. BezioRush v. Bezio
Petitioner was told to leave the mess hall because his name did not appear on a list of inmates who were authorized to be there when “special diet” meals were served. He began arguing with the correction officer escorting him from the mess hall, who subsequently authored a misbehavior report charging petitioner with creating a disturbance, making threats, refusing a direct order, violating mess hall policies and being out of place. Following a tier III disciplinary hearing, petitioner was found guilty of all but the latter charge. That determination was upheld on administrative appeal, with a downward modification of the penalty assessed. This
We confirm. Petitioner‘s assertion that he was denied the right to call certain witnesses is belied by the record. Indeed, a civilian cook, a physician and the facility‘s food service
However, the remaining charges involve petitioner‘s behavior while being escorted from the mess hall by the correction officer who—notwithstanding the foregoing—had correctly ascertained that petitioner was not on the special diet roster on the day of the incident. In this regard, an inmate witness testified that petitioner refused to leave the mess hall and pushed the correction officer. A correction sergeant likewise observed petitioner turn around near the entrance to the mess hall and aggressively confront the author of the misbehavior report. Such testimony, along with the misbehavior report itself, constitutes substantial evidence supporting the finding of guilt (see Matter of James v Fischer, 58 AD3d 981 [2009]; Matter of Rodriguez v Selsky, 50 AD3d 1337, 1337 [2008]).
Petitioner‘s remaining procedural challenges are similarly unavailing. He contends that the hearing was not timely commenced or completed. With regard to these calculations, the day the misbehavior report is completed is excluded (see Matter of Davis v Prack, 63 AD3d 1457, 1458 [2009]; Matter of Infante v Selsky, 299 AD2d 612, 613 [2002]). Here, the misbehavior report was prepared on July 24, 2009 and the hearing commenced on July 30, 2009, clearly within the required seven days (see
Next, petitioner has failed to demonstrate that he was prejudiced by any purported deficiencies in the misbehavior report, including that it was typed*—rather than handwritten—and not endorsed by all of the correction officers who witnessed the incident (see Matter of West v Costello, 270 AD2d 673, 674 [2000]). Finally, we are satisfied that petitioner received
To the extent petitioner‘s remaining arguments are properly before us, they have been reviewed and determined to be without merit.
Peters, J.P., Rose, Lahtinen and McCarthy, JJ., concur.
Adjudged that the determination is confirmed, without costs, and petition dismissed.