Malik v. Senkowski

—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Clinton County) to review a determination of respondent which found petitioner guilty of violating certain disciplinary rules. Following a tier III hearing, petitioner, a prison inmate, was found guilty of violent conduct, disturbing the facility, refusing a direct order, verbal harassment and possessing an altered item. He commenced this CPLR article 78 proceeding challenging the determination on a number of grounds. Petitioner contends that the determination is not supported 794 by substantial evidence. Initially, we note that petitioner’s knowing and voluntary guilty plea on the harassment charge precludes his substantial evidence challenge on that charge (see, Matter of Moolenaar v Goord, 266 AD2d 625). With regard to the remaining charges, the misbehavior report and the testimony offered by the correction officers who authored the report and witnessed the incident provide substantial evidence of petitioner’s guilt (see, Matter of McNair v Goord, 265 AD2d 716; see also, Matter of Primo v Goord, 266 AD2d 602). Petitioner’s contention — regarding the refusal to comply with a direct order charge — that he did not hear the correction officer’s order merely raised a credibility issue which the Hearing Officer was entitled to resolve against him (see, Matter of London v Miller, 251 AD2d 837, appeal dismissed 92 NY2d 946). Furthermore, petitioner’s refusal to attend his disciplinary hearing constituted a waiver of his right to challenge the procedural irregularities alleged by him to have occurred at that hearing (see, Matter of Kalwasinski v Senkowski, 244 AD2d 738). In any event, were we to examine petitioner’s remaining contentions, including his claims that he was denied meaningful employee assistance and that his penalty was excessive, we would find them to be without merit. Cardona, P. J., Spain, Carpinello, Graffeo and Mugglin, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.