Rizzuto v. Coombe

• Decision Date: 21 March 1996
• Citation: 639 N.Y.S.2d 582,225 A.D.2d 961
• Parties: In the Matter of Joseph RIZZUTO, Petitioner, v. Philip COOMBE, as Commissioner of the New York State Department of Correctional Services, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 582

639 N.Y.S.2d 582

225 A.D.2d 961

In the Matter of Joseph RIZZUTO, Petitioner, v. Philip COOMBE, as Commissioner of the New York State

Department of Correctional Services, Respondent.

Supreme Court, Appellate Division,

Third Department.

March 21, 1996.

Joseph Rizzuto, Woodbourne, in pro per.

Dennis C. Vacco, Attorney General (Catherine S. Hill, of counsel), Albany, for respondent.

Before MIKOLL, J.P., and CREW, CASEY, YESAWICH and PETERS, JJ.

PETERS, Justice.

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 which found petitioner guilty of violating certain prison disciplinary rules.

On November 20, 1994, while petitioner was an inmate at Woodbourne Correctional Facility in Sullivan County, he was issued two misbehavior reports, both of which charged him with acting in an obstructive and harassing manner towards correction officers after he had been ordered to provide urine samples for testing. The first report, authored by Correction Officer D. Smith, charged petitioner with violating rule 106.10 (7 NYCRR 270.2[B][7][i] [refusing to obey a direct order]), rule 107.10 (7 NYCRR 270.2[B][8][i] [interfering with an employee]), rule 107.11 (7 NYCRR 270.2[B][8][ii] [verbal harassment]) and rule 108.14 (7 NYCRR 270.2[B][9][v] [failing to comply with urinalysis testing regulations]). The second report, authored by Correction Sergeant L. Damon, charged petitioner with violating rules 106.10 and 107.10. Following a tier III disciplinary hearing, petitioner was found guilty of violating all charges in the misbehavior reports except the one alleging a violation of rule 106.10 in the first misbehavior report. Petitioner's administrative appeal was denied and this proceeding ensued.

We confirm. Petitioner's own statements admitting that, inter alia, he argued with correction officers, the detailed misbehavior reports written on the day of the incidents by the correction officers involved and the corroborative testimony of the hearing witnesses constitute substantial evidence that petitioner violated the subject rules (see, Matter of Faison v. Stinson, 221 A.D.2d 746, 633 N.Y.S.2d 635; Matter of Feliciano v. Coughlin, 206 A.D.2d 571, 572, 614 N.Y.S.2d 80). Although petitioner argues that he had valid reasons for questioning orders, even if he is correct, this would not constitute justification for his conduct (see, e.g., Matter of Roman v. Coughlin, 202 A.D.2d 1000, 609 N.Y.S.2d 732; Matter of Scott v. Leonardo, 178 A.D.2d 865, 577 N.Y.S.2d 918). Further, while it is true that the second misbehavior report incorrectly indicates that rule 107.10 constituted verbal harassment instead of stating interference with an employee, petitioner failed to object to the adequacy of the notice at the hearing (see, Matter of Rodriguez v. Coughlin, 190 A.D.2d 919, 920, 593 N.Y.S.2d 889) and, in any event, he pleaded not guilty to and was later found guilty of the correct charge.

Petitioner also challenges the fact that Damon, the author of the second...