Bell v. Goord

Proceeding pursuant to CPLR article 78 to review a determination of the New York State Department of Correctional Services, dated January 12, 2000, made after a Tier III disciplinary hearing, as amended by a determination of the Director of the Special Housing/ Inmate Disciplinary Program, dated March 16, 2000, finding that the petitioner violated a direct order and participated in a demonstration, and imposing penalties, including forfeiture of six months good-time credit. Adjudged that the petition is granted, on the law, without costs or disbursements, to the extent that the finding that the petitioner participated in a demonstration is annulled, that charge is dismissed, the respondent is directed to expunge that charge from the petitioner’s institutional record, the penalty of forfeiture of six months good-time credit is vacated, the determination is otherwise confirmed, the petition is otherwise denied, the proceeding is otherwise dismissed, and the matter is remitted to the respondent to determine the amount of good-time credit, if any, that should be forfeited for violating a direct order. The determination that the petitioner violated a direct order is supported by substantial evidence (see Matter of Abdur-Raheem v Mann, 85 NY2d 113; Matter of Farid v Coombe, 236 AD2d 660; Matter of James v Strack, 214 AD2d 674). However, there is no substantial evidence in the record that the petitioner knew about a demonstration and, a fortiori, no basis to infer that his refusal to comply with a direct order constituted participation in a demonstration. Accordingly, that charge must be dismissed. We remit this matter to the respondent to determine the amount of good-time credit, if any, that should be forfeited for violating a direct order (see Matter of Wells v Selsky, 282 AD2d 799; see also Matter of Konigsberg v Selsky, 255 AD2d 702). The petitioner’s remaining contentions are either unpreserved for this Court’s review or without merit. Feuerstein, J.P., Smith, Goldstein and Luciano, JJ., concur.