| Matter of Dumpson v Fischer |
| 2008 NY Slip Op 04244 [51 AD3d 1161] |
| May 8, 2008 |
| Appellate Division, Third Department |
| In the Matter of Timothy Dumpson, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Franklin County) to review a determination of the Director of Special Housingand Inmate Disciplinary Programs which directed that petitioner be placed into administrativesegregation.
While petitioner was confined to the special housing unit, he was served with arecommendation by the Inspector General's office that he be placed in administrative segregationat the expiration of his disciplinary penalty. After a hearing, the recommendation was sustainedupon a finding that petitioner posed a threat to the safety and security of the staff and inmates ofthe correctional facility. That decision was affirmed upon administrative appeal and this CPLRarticle 78 proceeding ensued.
We confirm. The record establishes that, since his initial incarceration in 1986, petitioner hasassaulted at least 10 correction officers, leading to two separate convictions of three counts ofassault in the second degree and resulting in the imposition of additional prison terms. In one ofthese incidents, petitioner took five correction officers hostage, holding them for 14 hours duringwhich he threatened and assaulted them. During a second incident, he stabbed two correctionofficers with a homemade knife and injured three others. Moreover, petitioner has an extensiveprison disciplinary record consisting of numerous tier II and tier III infractions—most ofwhich were committed while confined to the special housing unit and include violations [*2]of the rules prohibiting the possession of weapons, making threats,arson, violent conduct and assaulting staff and warranted the loss of seven years of good time. Inour view, the foregoing provides substantial evidence that petitioner's "presence in [the] generalpopulation would pose a threat to the safety and security of the facility" (7 NYCRR 301.4 [b]; see Matter of Ryan v Selsky, 49 AD3d926, 926 [2008]; Matter of Obregonv Goord, 36 AD3d 1034, 1035 [2007]) and, thus, the determination to place him inadministrative segregation will not be disturbed. Petitioner's reliance on his recent improvedbehavior while in the special housing unit and his receipt of a discretionary time cut from hisdisciplinary penalty is not persuasive inasmuch as the " 'denial of the opportunity to commit acrime cannot be . . . taken as probative evidence of rehabilitation' " (Matter of Blake v Selsky, 10 AD3d774, 776 [2004], quoting Matter of Smith v Goord, 250 AD2d 946, 947 [1998],lv denied 92 NY2d 810 [1998]; accord Matter of Ryan v Selsky, 49 AD3d at927).
Petitioner's remaining contentions have been considered and found to be without merit.
Mercure, J.P., Carpinello, Kane, Kavanagh and Stein, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.