Barber v. Selsky

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 Correctional Services which found petitioner guilty of violating certain prison disciplinary rules. Petitioner was charged in a misbehavior report with violating the prison disciplinary rules that prohibit refusing a direct order, interference with an employee, making threats and harassment. Following a tier III disciplinary hearing, petitioner was found guilty of interference with an employee’s performance of duties and harassment and not guilty of refusing a direct order and making threats. Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding challenging the determination of guilt. The misbehavior report stemmed from petitioner’s belligerent 951 behavior toward a correction officer who was attempting to counsel petitioner regarding his inappropriate behavior— namely, communicating with a female civilian while on community service detail. Petitioner, denying that he had any contact with the civilian, engaged in a heated argument with the correction officer, repeatedly waived his finger in the correction officer’s face and refused to listen to him. Contrary to petitioner’s contention, the misbehavior report and corroborating eyewitness testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Ferrar v Selsky, 1 AD3d 671 [2003]; Matter of McCoy v Goord, 211 AD2d 525 [2000]). Whether petitioner actually communicated with the civilian is irrelevant to the instant charges, which arose not from any alleged unauthorized communication but, rather, from his insolent behavior and confrontation with the correction officer. Petitioner’s remaining contentions, including his claims of double jeopardy, have been reviewed and found to be without merit. Cardona, P.J., Crew III, Carpinello, Rose and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.