Austin v. Goord , 742 N.Y.S.2d 922 ( 2002 )

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

Petitioner was found guilty of violating the prison disciplinary rules that prohibit refusing to obey a direct order and creating a disturbance. The incident that led to these charges took place in the facility’s mattress shop where petitioner was assigned to work. Petitioner was conversing with other inmates when the reporting correction officer asked him to take out the trash. Petitioner refused and he informed the officer in a raised voice that he was “busy” and that trash removal was not his job. He then taunted the correction officer by shouting, “We’ll see who runs this place now, huh boys?”

Substantial evidence of petitioner’s guilt was presented at the disciplinary hearing in the form of the misbehavior report and the testimony of the authoring correction officer who observed the misconduct in question (see, Matter of Bullock v Goord, 289 AD2d 864, 865; Matter of Lamage v Goord, 285 AD2d 724, appeal dismissed 97 NY2d 639). The exculpatory testimony given by petitioner and his witnesses presented an issue of credibility for resolution by the Hearing Officer (see, Matter of Mitchell v Drown, 289 AD2d 905, 906; Matter of Leake v Goord, 289 AD2d 752, appeal dismissed 98 NY2d 646). Petitioner’s remaining contentions, including his assertion that he was denied due process, have been examined and found to be lacking in merit.

Mercure, J.P., Crew III, Spain, Mugglin and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.