Shelton v. Goord

795 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. Petitioner challenges a determination finding him guilty of violating the prison disciplinary rules that prohibit violent conduct, assault on staff and disobeying a direct order. According to the misbehavior report, petitioner was identified as one in a group of inmates who became agitated and began waving their arms culminating in an assault and attempted assault on various correction officers. Orders by staff were ignored by the inmates until two shots were fired. Contrary to petitioner’s contention, the misbehavior report and testimony at the hearing, which identified petitioner as being a member of the group, provide substantial evidence to support the determination of guilt (see Matter of Johnson v Sabourin, 290 AD2d 799 [2002]; Matter of Daum v Goord, 274 AD2d 715 [2000]). Petitioner asserts that he was incorrectly found guilty of assault because the author of the misbehavior report testified that he did not see petitioner actually hit a correction officer. The body of the misbehavior report specifically charges petitioner with attempt to assault a correction officer, which is a violation of the rule that prohibits both assaults and attempts to assault another person (see 7 NYCRR 270.2 [B] [1] [ii]; Matter of Price v Goord, 308 AD2d 625, 626 [2003]). Even if petitioner had raised his remaining contentions at the hearing or on administrative appeal thereby preserving them for our review (see Matter of Pulliam v Waite, 8 AD3d 841 [2004]), we would find them to be without merit. Mercure, J.P., Crew III, Peters, Rose and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.