Rashid v. Ketchum

• Decision Date: 05 February 1998
• Citation: 247 A.D.2d 670,668 N.Y.S.2d 721
• Parties: , 1998 N.Y. Slip Op. 1108 In the Matter of Ali RASHID, Appellant, v. Robert KETCHUM, as Hearing Officer, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 721

668 N.Y.S.2d 721

247 A.D.2d 670, 1998 N.Y. Slip Op. 1108

In the Matter of Ali RASHID, Appellant, v. Robert KETCHUM, as Hearing Officer, et al., Respondents.

Supreme Court, Appellate Division, Third Department.

Feb. 5, 1998.

Ali Rashid, Dannemora, for appellant.

Dennis C. Vacco, Attorney-General (Martin A. Hotvet, of counsel), Albany, for respondents.

Before MERCURE, J.P., and CREW, YESAWICH, SPAIN and CARPINELLO, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the Supreme Court (Teresi, J.), entered April 23, 1997 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

After refusing to move into a double occupancy cell, petitioner, a prison inmate, was charged in a misbehavior report and, after a hearing, found guilty of refusing to obey a direct order and failing to follow staff directions relating to movement within the facility in violation of prison disciplinary rules. The determination of guilt was affirmed on administrative appeal, although the penalty was modified to 180 days in the special housing unit with a loss of certain privileges and good time credit. Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination. Supreme Court denied the petition and we affirm.

Petitioner's attempt to excuse his misconduct by claiming that the former double-bunking regulation (9 NYCRR former 7621.5) violated his right to practice his religion is unavailing because, even if this were so, it has been recognized that inmates are not free to disobey the orders of correction personnel, even if such orders appear to be unauthorized or infringe upon the inmate's constitutional rights (see, Matter of Rivera v. Smith, 63 N.Y.2d 501, 515-516, 483 N.Y.S.2d 187, 472 N.E.2d 1015; Matter of Keith v. Coombe, 235 A.D.2d 879, 653 N.Y.S.2d 401). The detailed misbehavior report and petitioner's admission that he had refused the order of the correction officer to move into the double occupancy cell provide substantial evidence to support the determination (see, Matter of Guerrero v. Coombe, 239 A.D.2d 676, 657 N.Y.S.2d 1016; Matter of Knowles v. Coombe, 236 A.D.2d 659, 653 N.Y.S.2d 437).

ORDERED that the judgment is affirmed, without costs.