Daum v. Sipple
Decision Date | 10 November 2021 |
Docket Number | 533355 |
Parties | In the Matter of Terry DAUM, Petitioner, v. Gary SIPPLE, as Deputy Superintendent of Security at Sullivan Correctional Facility, Respondent. |
Court | New York Supreme Court — Appellate Division |
Terry Daum, Fallsburg, petitioner pro se.
Letitia James, Attorney General, Albany (Owen Demuth of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Aarons, Pritzker and Reynolds Fitzgerald, JJ.
Proceeding pursuant to CPLR article 78 ( ) to review a determination of the Superintendent of Sullivan Correctional Facility finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with refusing a direct order, harassing an employee, interfering with an employee, making threats and creating a disturbance. According to the report, petitioner was outside his cell when he was observed displaying his middle finger at a female correction officer. The correction officer who observed petitioner's conduct ordered petitioner to lock in his cell. Petitioner became irate at that point, refusing to lock in and began verbally abusing the female correction officer. After he was again ordered to lock in, he went to the doorway of his cell but positioned himself so as to prevent the cell door from closing. Once petitioner was inside his cell, he continued yelling and verbally abusing the correction officer. Following a tier II hearing, petitioner was found not guilty of making threats but guilty of the remaining charges, and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report and hearing testimony provide substantial evidence supporting the determination of guilt (see Matter of Dove v. Annucci, 190 A.D.3d 1181, 1181–1182, 136 N.Y.S.3d 809 [2021], lv denied 37 N.Y.3d 909, 2021 WL 4188675 [2021] ; Matter of Steele v. Annucci, 178 A.D.3d 1226, 1226–1227, 111 N.Y.S.3d 917 [2019] ). The contrary testimony of petitioner and his witnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of Snyder v. Annucci, 188 A.D.3d 1346, 1347, 136 N.Y.S.3d 170 [2020] ; Matter of Beltre v. Rodriguez, 185 A.D.3d 1370, 1370, 126 N.Y.S.3d 423 [2020] ). Contrary to petitioner's contention, the testimony of the sergeant who supervised the correction officers involved was not inconsistent with the...
To continue reading
Request your trial-
People v. Allen
...accordance with the plea agreement, to a prison term of seven years followed by 10 years of postrelease supervision. Defendant appeals.154 N.Y.S.3d 284 Defendant contends that his waiver of the right to appeal is invalid and, therefore, his challenge to the severity of the sentence is not f......
-
Mack v. Annucci
...... evidence to support the determination of guilt as to the. remaining charges (see Matter of Daum v Sipple, 199. A.D.3d 1156, 1156 [3d Dept 2021]; Matter of Crawford v. Girdich, 301 A.D.2d 921, 921 [3d Dept 2003]). To the. extent that ......