Mcfadden v. Prack

• Decision Date: 07 August 2014
• Citation: 2014 N.Y. Slip Op. 05672,990 N.Y.S.2d 376,120 A.D.3d 853
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of Reginald McFADDEN, Petitioner, v. Albert PRACK, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

120 A.D.3d 853
990 N.Y.S.2d 376
2014 N.Y. Slip Op. 05672

In the Matter of Reginald McFADDEN, Petitioner,
v.
Albert PRACK, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

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

Aug. 7, 2014.

[990 N.Y.S.2d 377]

Reginald McFadden, Attica, petitioner pro se.

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

Before: LAHTINEN, J.P., STEIN, EGAN JR., DEVINE and CLARK, JJ.

DEVINE, J.

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 which found petitioner guilty of violating certain prison disciplinary rules.

After being escorted to a hospital outside of his correctional facility, petitioner brandished a make-shift handgun he had made out of various materials and aimed it at three correction officers. The officers were able to subdue him, and petitioner was then taken for further medical attention, where the examining physician noted that petitioner had something hidden in his sock. A search revealed an envelope that contained, among other things, a partial map of Pennsylvania and several names and phone numbers, as well as a piece of styrofoam. Based upon these events, a search was conducted of petitioner's cell, which uncovered, among other things, a frame for a prop gun made out of styrofoam, handmade bullets made out of aluminum foil and a toothbrush sharpened to a point at one end. As a result of the foregoing, petitioner was charged in three misbehavior reports with attempting to escape, violent conduct, creating a disturbance, assault, possessing a weapon (two counts), making threats, possessing escape

[990 N.Y.S.2d 378]

paraphernalia (two counts), possessing an altered item and possessing contraband. Following a tier III disciplinary hearing covering all of the reports, petitioner was found guilty as charged. The determination was upheld on administrative appeal, resulting in this CPLR article 78 proceeding.

We confirm. Substantial evidence, consisting of the misbehavior reports, related documentation and the hearing testimony, supports the determination of guilt ( see Matter of Curry v. Fischer, 113 A.D.3d 981, 982, 980 N.Y.S.2d 165 [2014];Matter of Oliver v. Fischer, 107 A.D.3d 1268, 1268–1269, 967 N.Y.S.2d 248 [2013] ). Although the correction officer who actually...