Johnson v. Sabourin

Proceeding pursuant to CPLR [800] article 78 (transferred to this Court by order of the Supreme Court, entered in Franklin County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule. Petitioner was found guilty of violating the prison disciplinary rule prohibiting unauthorized assembly. As set forth in the misbehavior report, the reporting correction officer observed petitioner with eight other inmates who had gathered in a group in the prison yard annex. Despite numerous orders to disperse issued by correction officers using the public address system, the inmates failed to comply. The misbehavior report, authored by a correction officer who witnessed the incident in question, was sufficiently detailed and probative to constitute substantial evidence of petitioner’s guilt (see, Matter of McKins v James, 285 AD2d 889; Matter of Daum v Goord, 274 AD2d 715). In addition, petitioner’s own testimony supported the determination as he admitted that he had been one of the group that had gathered. His contention that he was only present in the yard for the purpose of working out and that he did not hear the orders to disperse raised an issue of credibility for resolution by the Hearing Officer (see, Matter of Torres v Goord, 275 AD2d 840; Matter of Morales v Goord, 270 AD2d 549). Petitioner’s remaining contentions have been examined and found to be without merit. Cardona, P.J., Crew III, Peters, Carpinello and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.