Dove v. Annucci

• Decision Date: 21 January 2021
• Docket Number: 531258
• Citation: 190 A.D.3d 1181,136 N.Y.S.3d 809 (Mem)
• Parties: In the Matter of Donald M. DOVE, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

190 A.D.3d 1181
136 N.Y.S.3d 809 (Mem)

In the Matter of Donald M. DOVE, Petitioner,
v.
Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, et al., Respondents.

531258

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

Calendar Date: January 4, 2021
Decided and Entered: January 21, 2021

Donald M. Dove, Ossining, petitioner pro se.

Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondents.

Before: Garry, P.J., Lynch, Mulvey, Pritzker and Colangelo, JJ.

136 N.Y.S.3d 810

MEMORANDUM AND JUDGMENT

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 Superintendent of Shawangunk Correctional Facility finding petitioner guilty of violating certain prison disciplinary rules.

In response to a medical emergency in the prison facility's kitchen, petitioner and several other inmates were given direct orders to clear the area. Petitioner refused multiple direct orders to do so and made sarcastic and/or dismissive comments causing other inmates in that area to stop, look and make comments. When the response team arrived in the kitchen, petitioner ultimately complied, and he was later confined. As a result of the incident, petitioner was charged in a misbehavior report with creating a disturbance, interfering with an employee and refusing a direct order. Following a tier II disciplinary hearing, petitioner was found guilty of the charges, and the determination was affirmed on administrative appeal, prompting this CPLR article 78 proceeding.

We confirm. The misbehavior report, together with the hearing testimony of the correction officer who endorsed that report and observed the incident, provide substantial evidence supporting the determination of guilt (see Matter of Steele v. Annucci, 178 A.D.3d 1226, 1226–1227, 111 N.Y.S.3d 917 [2019] ; Matter of Martin v. Goord, 36 A.D.3d 977, 977, 825 N.Y.S.2d 842 [2007] ). Petitioner's protestation of innocence...