Credell v. Hurt

• Decision Date: 06 December 2018
• Docket Number: 525602
• Citation: 89 N.Y.S.3d 416,167 A.D.3d 1113
• Parties: In the Matter of Darnell CREDELL, Petitioner, v. R. HURT, as Correction Sergeant at Orleans Correctional Facility, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

167 A.D.3d 1113
89 N.Y.S.3d 416

In the Matter of Darnell CREDELL, Petitioner,
v.
R. HURT, as Correction Sergeant at Orleans Correctional Facility, et al., Respondents.

525602

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: October 26, 2018
Decided and Entered: December 6, 2018

89 N.Y.S.3d 417

Darnell Credell, Gowanda, petitioner pro se.

Barbara D. Underwood, Attorney General, Albany (Martin A. Hotvet of counsel), for respondents.

Before: McCarthy, J.P., Lynch, Aarons, Rumsey and Pritzker, JJ.

MEMORANDUM AND JUDGMENT

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 the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with disobeying a direct order after he refused to comply with a correction officer's directive to submit to fingerprinting. At the tier III disciplinary hearing that followed, petitioner objected to the classification of the disciplinary violation – arguing that he previously had been served with a misbehavior report charging him with disobeying a direct order as a tier II violation and questioning the basis for "boost[ing] it" to a tier III violation – and asserted that the correction officer at issue lacked the authority to compel him to submit an additional set of his fingerprints. Petitioner thereafter was found guilty of the charge, and a penalty was imposed. The determination was affirmed upon administrative appeal, and this CPLR article 78 proceeding ensued.

Initially, we reject petitioner's claim that his disciplinary infraction improperly was classified as a tier III violation. The pertinent regulation provides that refusing to obey a direct order may be designated as either a tier I, II or III violation (see 7 NYCRR 270.2 [B][7][i]; see generally Matter of Pettus v. New York State Dept. of Correctional Servs. , 73 A.D.3d 1411, 1412, 902 N.Y.S.2d 690 [2010] ; Matter of Kalwasinski...