Blazic v. Walsh

—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Sullivan County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules. Petitioner was found guilty of violating the prison disciplinary rules prohibiting inmates from refusing to obey a direct order and engaging in violent conduct. The Attorney General concedes, and our review of the record confirms, that there is insufficient evidence to support so much of the determination as found petitioner guilty of violent conduct. That part of the determination is, accordingly, annulled and the matter is remitted to the Commissioner of Correctional Services for a re-determination of the penalty imposed (see Matter of Delgado v Hurlburt, 279 AD2d 734). Substantial evidence was presented supporting the remainder of the determination wherein petitioner was found guilty of refusing to obey a direct order. Presented in evidence at the disciplinary hearing was the misbehavior report relating that petitioner ignored a correction officer’s repeated orders to leave his cell and report to his job as an evening porter. The testimony of the reporting officer was consistent with this rendition of the facts and we find that there was sufficient evidence to support the determination of his guilt (see Matter of Cliff v Brady, 290 AD2d 895, 895-896, lv dismissed and denied 98 NY2d 642). Petitioner’s remaining contentions, including his assertion of hearing officer bias, have been examined and found to be without merit. Spain, J.P., Mugglin, Rose, Lahtinen and Kane, JJ., concur. 709 Adjudged that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of violent conduct; petition granted to that extent and matter remitted to the Commissioner of Correctional Services for further proceedings not inconsistent with this Court’s decision; and, as so modified, confirmed.