| Matter of Wilson v Dubray |
| 2008 NY Slip Op 06774 [54 AD3d 1089] |
| September 11, 2008 |
| Appellate Division, Third Department |
| In the Matter of Albert Wilson, Petitioner, v Keith Dubray, asDirector of Special Housing and Inmate Disciplinary Programs,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 Albany County) to review a determination of the Commissioner of CorrectionalServices which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was engaged in a physical altercation with another inmate and, when he ignored acorrection officer's directive to stop fighting, the response team had to be called to break up thefight. As a result, petitioner was charged in a misbehavior report with fighting, engaging inviolent conduct and refusing a direct order. He pleaded guilty to refusing a direct order and wasfound guilty of all charges following a tier III disciplinary hearing. The determination was lateraffirmed on administrative appeal and this CPLR article 78 proceeding ensued.
We confirm. Initially, inasmuch as petitioner pleaded guilty to refusing a direct order, he isprecluded from challenging the evidence supporting the determination in this regard (see [*2]Matter of Britt v Goord, 40 AD3d 1321, 1322 [2007]; Matter of Price v Goord, 29 AD3d1203, 1204 [2006]). Moreover, the misbehavior report, documentary evidence and hearingtestimony provide substantial evidence supporting the determination finding petitioner guilty ofthe remaining charges (see Matter ofGreen v Goord, 26 AD3d 562, 563 [2006]). Even if petitioner did not initiate thealtercation, this does not absolve him of guilt under the circumstances presented (see Matterof Gloster v Goord, 278 AD2d 568, 568 [2000], appeal dismissed 96 NY2d 825[2001]). Therefore, we find no reason to disturb the determination at hand.
Mercure, J.P., Peters, Rose, Malone Jr. and Kavanagh, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.