Wigfall v. Dep't of Corr. Servs.

• Decision Date: 21 November 2012
• Citation: 2012 N.Y. Slip Op. 07920,100 A.D.3d 1211,954 N.Y.S.2d 274
• Parties: In the Matter of Joseph WIGFALL, Petitioner, v. DEPARTMENT OF CORRECTIONAL SERVICES, Respondent.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 1211

954 N.Y.S.2d 274

2012 N.Y. Slip Op. 07920

In the Matter of Joseph WIGFALL, Petitioner,

v.DEPARTMENT OF CORRECTIONAL SERVICES, Respondent.

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

Nov. 21, 2012.

Joseph Wigfall, Pine City, petitioner pro se.

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

Before: PETERS, P.J., LAHTINEN, KAVANAGH, McCARTHY and GARRY, JJ.

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.

Petitioner was issued four related misbehavior reports charging him with violating 11 prison disciplinary rules on January 12, 2011. The first report, charging petitioner with violent conduct, interference, refusing a direct order and refusing a search or frisk, describes how a strip search of petitioner was ordered after a suspicious item was noted in the course of a pat frisk. Specifically, it states that, after an unknown white object was viewed protruding from petitioner's buttocks area in the course of the strip search, petitioner became violent and, in the course of the ensuing struggle, pulled the object out and swallowed it before it could be retrieved. The second and third misbehavior reports charged petitioner with two counts of assault on staff, two counts of violent conduct and refusal of a direct order, and interference with an employee, all stemming from the struggle during that strip search whereby petitioner fought with and caused injuries to two correction officers trying to restrain him. The fourth misbehavior report charged petitioner with possession of a weapon after a subsequent search of petitioner's cell produced a small, cutting-type weapon hidden in a tea bag. Following a tier III disciplinary hearing, petitioner was found guilty of all charges. The determination was affirmed on administrative appeal with a modified penalty. This CPLR article 78 proceeding followed.

We confirm. The misbehavior report and related documentation, together with the testimony of the correction officers involved in the altercation and searches, provide substantial evidence supporting the determination of guilt ( see Matter of Mungo v. Director of Special Hous. & Inmate Disciplinary Programs, 93 A.D.3d 1057, 1057, 940 N.Y.S.2d 696 [2012],appeal dismissed19 N.Y.3d 919, 950 N.Y.S.2d 87, 973 N.E.2d 183 [2012];Matter of Nelson v. Fischer, 93 A.D.3d 1059, 940 N.Y.S.2d 497 [2012] ). Petitioner's claim that the charges were fabricated and that, in fact, he was assaulted by the...