Hogan v. Thompson

• Decision Date: 14 April 2022
• Docket Number: 533334
• Citation: 204 A.D.3d 1201,164 N.Y.S.3d 537 (Mem)
• Parties: In the Matter of John HOGAN, Petitioner, v. James THOMPSON, as Superintendent of Collins Correctional Facility, Respondent.
• Court: New York Supreme Court — Appellate Division

204 A.D.3d 1201

164 N.Y.S.3d 537 (Mem)

In the Matter of John HOGAN, Petitioner,

v.James THOMPSON, as Superintendent of Collins Correctional Facility, Respondent.

533334

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

Calendar Date: March 18, 2022

Decided and Entered: April 14, 2022

John Hogan, Collins, petitioner pro se.

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

Before: Garry, P.J., Egan Jr., Clark, Aarons and Colangelo, 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 respondent finding petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with fighting and creating a disturbance. Following a tier II disciplinary hearing, petitioner was found guilty of creating a disturbance and not guilty of the remaining charge, and a penalty was imposed. Upon administrative review, the finding of guilt was affirmed, and petitioner thereafter commenced this CPLR article 78 proceeding to challenge respondent's determination.

Petitioner primarily contends that the determination finding him guilty of creating a disturbance is not supported by substantial evidence. We agree. Pursuant to the relevant regulations, an incarcerated individual "shall not engage in conduct which disturbs the order of any part of the facility" ( 7 NYCRR 270.2 [B][5][iv]). Such disruptive conduct includes, as relevant here, "loud talking in a mess hall, program area or corridor" (7 NYCRR 270.0[B][5][iv]). The misbehavior report, which was the sole evidence relied upon by the Hearing Officer, provided, in relevant part, that petitioner was observed "arguing" with another incarcerated individual "in the dorm hallway ..., which drew the attention of the [incarcerated individuals] nearby." The misbehavior report does not reflect that petitioner was screaming (compare Matter of Berrian v. Goord, 288 A.D.2d 670, 671, 732 N.Y.S.2d 700 [2001] ) or otherwise speaking in a loud or boisterous manner (compare Matter of Caraway v. Annucci, 190 A.D.3d 1198, 1198–1199, 141 N.Y.S.3d 166 [2021] ; Matter of Wright v. Goord, 284 A.D.2d 688, 688, 725 N.Y.S.2d 762 [2001] ), nor does it establish that petitioner's behavior triggered an affirmative response on the part of the incarcerated individuals observing the alleged argument (compare Matter of Dove v. Annucci, 190 A.D.3d 1181, 1181, 136 N.Y.S.3d 809 [2021], lv denied 37 N.Y.3d 909, 153 N.Y.S.3d 438, 175 N.E.3d 463 [2021] ). Similarly, petitioner was found not guilty of fighting, and there were no other established disciplinary infractions that would give rise to a reasonable inference that his conduct was disruptive (compare Matter of Snyder v. Annucci, 188 A.D.3d 1346, 1346–1347, 136 N.Y.S.3d 170 [2020] ). In short, as the misbehavior report fails to identify the manner in which petitioner's conduct disturbed the order of the facility, we cannot say that respo...