Quinn v. Coughlin , 629 N.Y.S.2d 697 ( 1995 )

Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly granted the petition and annulled the determination finding petitioner guilty of refusing to obey a direct order (see, 7 NYCRR 270.2 [B] [7] [i]). At petitioner’s Tier III hearing, the Hearing Officer erred in refusing to receive or consider evidence that petitioner acted out of genuine concern for his safety (see, Matter of De Mauro v LeFevre, 91 AD2d 1156). It is well established that "evidence of justification or mitigating circumstances is relevant in a prison disciplinary proceeding” (Matter of De Mauro v LeFevre, supra, at 1157; see, Matter of Coleman v Coombe, 65 NY2d 777, 780; Matter of Wilson v Coughlin, 186 AD2d 1090; Matter of Bole v Coughlin, 132 AD2d 70, 73).

We reject respondent’s contention that petitioner’s challenge to the determination is not preserved for our review. (Appeal from Judgment of Supreme Court, Wyoming County, Dadd, J.—CPLR art 78.) Present—Denman, P. J., Green, Fallon, Do-err and Balio, JJ.