Kelly v. Comm'r of Corr. & Cmnty. Supervision

• Decision Date: 06 November 2014
• Docket Number: 518868
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of Daryl KELLY, Petitioner, v. COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION et al., Respondents.

122 A.D.3d 997

994 N.Y.S.2d 486

2014 N.Y. Slip Op. 07562

In the Matter of Daryl KELLY, Petitioner

v.COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION et al., Respondents.

518868

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

Nov. 6, 2014.

Daryl Kelly, Beacon, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondents.

Before: PETERS, P.J., STEIN, McCARTHY, ROSE and EGAN JR., JJ.

Opinion

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 Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner became disruptive after he was advised by a nurse that he would have to spend the night in the prison infirmary. A correction officer repeatedly ordered him to stop arguing with the nurse. Petitioner responded that he knew the officer's father also worked in the prison and that the officer should “watch [his] back.” The officer thereafter charged petitioner in a misbehavior report with making threats, refusing a direct order, creating a disturbance and harassment. Following a tier III disciplinary hearing, petitioner was found guilty as charged.

The determination was affirmed upon administrative review, and this CPLR article 78 proceeding ensued.

Contrary to petitioner's contention, the misbehavior report adequately set forth the rule violations alleged and the conduct that formed the basis for the charges against him (see Matter of Guillory v. Fischer, 110 A.D.3d 1426, 1427, 973 N.Y.S.2d 894 [2013], appeal dismissed 22 N.Y.3d 1111, 982 N.Y.S.2d 440, 5 N.E.3d 587 [2014] ; Matter of Toro v. Fischer, 104 A.D.3d 1036, 1037, 960 N.Y.S.2d 754 [2013] ). That report and the hearing testimony constitute substantial evidence to support the determination of guilt (see Matter of Evans v. Fischer, 116 A.D.3d 1329, 1330, 983 N.Y.S.2d 920 [2014] ). Petitioner's assertion that the version of events presented in the misbehavior report was inaccurate did nothing more than create credibility issues for the Hearing Officer to resolve (see id.; Matter of Flemming v. Rock, 112 A.D.3d 1259, 1260, 977 N.Y.S.2d 508 [2013], lv. denied 22 N.Y.3d 863, 2014 WL 702013 [2014] ). His remaining arguments, including the claims that the Hearing Officer failed to make an adequate inquiry into the refusal of an inmate witness to testify and that...