Wigfall v. Goord

Mar 10, 2005
Versions:16 A.D.3d 791
790 N.Y.S.2d 768
2005 N.Y. App. Div. LEXIS 2394

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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

After informing a correction officer that he could not provide a urine sample for testing, petitioner was observed urinating in a shower stall and admitted to defecating in a plastic bag. When confronted about his behavior, petitioner became loud and boisterous. He was charged in a misbehavior report with committing an unhygienic act, interfering with an employee, failing to comply with urinalysis test procedures, refusing a direct order and creating a disturbance. He was found guilty of these charges following a tier III disciplinary hearing. After the determination was affirmed on administrative appeal, petitioner commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report, together with the testimony of its author, constitute substantial evidence supporting the determination of guilt (see Matter of Green v Ricks, 304 AD2d 1010, 1011 [2003], lv denied 100 NY2d 509 [2003], cert denied sub nom. Green v Girdich 540 US 1166 [2004]; Matter of Borcsok v Selsky, 296 AD2d 678, 678 [2002], lv denied 98 NY2d 616 [2002]). Contrary to petitioner‘s claim, the misbehavior report was sufficiently detailed concerning the timing of events in question to provide him with adequate notice of the charges (see Matter of Hernandez v Selsky, 9 AD3d 662, 663 [2004], lv dismissed and denied 3 NY3d 698 [2004]; Matter of Smith v Portuondo, 309 AD2d 1028, 1028 [2003]). We have considered petitioner‘s remaining contentions, to the extent they are properly before us, and find them to be without merit.

Spain, J.P., Carpinello, Rose, Lahtinen and Kane, JJ., concur.

Adjudged that the determination is confirmed, without costs, and petition dismissed.