| Matter of Tevault v Fischer |
| 2009 NY Slip Op 02709 [61 AD3d 1161] |
| April 9, 2009 |
| Appellate Division, Third Department |
| In the Matter of Richard Tevault, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff 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 respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with, among other things, interfering with anemployee and abusing state property after it was discovered that he was missing a quantity ofprescription medication. At the conclusion of the tier III disciplinary hearing that followed,petitioner was found guilty of the aforementioned charges and a penalty was imposed.Petitioner's administrative appeal was unsuccessful, prompting him to commence this CPLRarticle 78 proceeding to challenge respondent's determination.
Preliminarily, whatever defects may have existed in the misbehavior report, we find that thedocument as a whole was sufficient to afford petitioner notice of the charges against him (see Matter of Abdul-Khaliq v Goord,34 AD3d 872 [2006]). Further, the misbehavior report and hearing testimony constitutesubstantial evidence to support the finding that petitioner misused or damaged his prescriptionmedication and, hence, violated rule 116.10 (see 7 NYCRR 270.2 [B] [17] [i]).Petitioner's assertion that he inadvertently dropped his medication on a wet floor, therebyaccounting for the missing pills, presented a credibility determination for the Hearing Officer toresolve (see e.g. Matter of Jackson vSmith, 49 AD3d 933 [2008]).[*2]
We reach a contrary conclusion, however, with regard tothe violation of rule 107.10, which provides that "[a]n inmate shall not physically or verballyobstruct or interfere with an employee at any time" (7 NYCRR 270.2 [B] [8] [i]). Here, a fellowinmate overdosed on the prescription medication Baclofen, prompting the facility to confiscatethe drug from all of the inmates for whom it had been prescribed, including petitioner. Thealleged interference relative to petitioner stemmed from the facility nurse having to interrupt her"typical" duties to do a pill count, ascertain how much of petitioner's medication was missingand author the misbehavior report. In our view, this is not the type of conduct that the subjectrule was designed to prevent (see Matter of Smythe v McClellan, 226 AD2d 840,841-842 [1996]). Notably, petitioner did not physically or verbally interfere with the nurse(compare Matter of Burr v Goord, 276 AD2d 947, 948 [2000], lv denied 96NY2d 701 [2001], cert denied 532 US 935 [2001]), there is no evidence that theunderlying pill count effectively precluded the nurse from responding to any medical situations(compare Matter of Johnson vArtus, 32 AD3d 1146, 1147 [2006]) and petitioner's loss or abuse of his medication,while improper, was not the precipitating event that gave rise to the pill count in the firstinstance (see Matter of Ramirez vSchultz, 13 AD3d 457, 458-459 [2004]). Accordingly, this portion of the determinationmust be annulled and all references thereto expunged from petitioner's institutional record (see Matter of Rodriguez v Selsky, 48AD3d 851, 852 [2008]). Moreover, inasmuch as the penalty imposed included arecommended loss of good time for both of the sustained charges, we remit this matter for aredetermination of the penalty relative to the remaining charge of abusing or damaging stateproperty (see id. at 852; Matterof Rampersant v Selsky, 32 AD3d 1085, 1086 [2006]).
Cardona, P.J., Peters, Lahtinen, Kavanagh and McCarthy, JJ., concur. Adjudged that thedetermination is modified, without costs, by annulling so much thereof as found petitioner guiltyof interfering with an employee and imposed a penalty; petition granted to that extent,respondent is directed to expunge all references thereto from petitioner's institutional record, andmatter remitted to respondent for an administrative redetermination of the penalty imposed onthe remaining violation; and, as so modified, confirmed.