McRae v. Leonardo , 176 A.D.2d 421 ( 1991 )

— Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Washington County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

The misbehavior report, coupled with petitioner’s testimony and the incident report, provided substantial evidence to support the determination that petitioner refused a direct order (see, People ex rel. Vega v Smith, 66 NY2d 130, 139-140). Any conflicting testimony by petitioner merely created an issue of credibility for the Hearing Officer to resolve (see, Matter of Hernandez v LeFevre, 150 AD2d 954, lv denied 74 NY2d 615). The charge of creating a disturbance, however, is not supported by substantial evidence and the finding of guilt on that charge must be annulled. Because the penalty imposed resulted from a determination of guilt on both charges, the matter must be remitted for reconsideration of a proper penalty (see, Matter of Nowlin v LeFevre, 151 AD2d 880, 882).

Mahoney, P. J., Casey, Weiss and Crew III, JJ., concur. Adjudged that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of creating a disturbance; petition granted to that extent and matter remitted to the Commissioner of Correctional Services for further proceedings not inconsistent with this court’s decision; and, as so modified, confirmed.