| Matter of Wilson v Artus |
| 2010 NY Slip Op 02032 [71 AD3d 1294] |
| March 18, 2010 |
| Appellate Division, Third Department |
| In the Matter of Harry Wilson, Petitioner, v Dale Artus, asSuperintendent of Clinton Correctional Facility, et al., Respondents. |
—[*1]
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 Commissioner ofCorrectional Services which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was among a group of 36 prison inmates who were being escorted through thefacility to attend religious services. After an incident involving one of the inmates stopped thegroup, petitioner, along with the others, refused to proceed for approximately five minutes,despite several direct orders from correction officers to do so. Finally, petitioner and the otherinmates continued to the services without further incident. Following a tier III disciplinaryhearing, petitioner was found guilty of demonstrating, threatening violent conduct, creating adisturbance, refusing a direct order and violating inmate movement rules and was assessed apenalty of 100 days in the special housing unit and the recommended loss of three months ofgood time. On administrative appeal, the determination was modified to expunge the guiltyfindings for demonstrating and threatening violent conduct, but was otherwise affirmed,including the penalty assessed. Petitioner thereafter commenced this CPLR article 78 proceedingto challenge that determination.
We affirm. The detailed misbehavior report, along with the testimony adduced at the [*2]hearing and the additional investigative reports provide substantialevidence to support the determination of petitioner's guilt (see Matter of Pedraza v Fischer, 65 AD3d 1434, 1435 [2009]; Matter of Estevez v Fischer, 63 AD3d1402, 1403 [2009]). While petitioner now contends that he was denied the right to call as awitness the correction officer who was working in the law library on the day of the incident, thehearing transcript reveals that, given ample opportunity, he specifically declined to calladditional witnesses (see Matter ofDixon v Brown, 62 AD3d 1223, 1224 [2009], lv denied 13 NY3d 704 [2009];Matter of Retamozzo v New York StateDept. of Correctional Servs., 31 AD3d 1083 [2006]). With regard to petitioner'schallenge to the severity of his penalty, we do not find it so shocking to one's sense of fairness asto be excessive (see Matter of Martinezv Goord, 48 AD3d 851 [2008]; Matter of Rivera v Goord, 38 AD3d 964, 964-965 [2007]).Petitioner's remaining contentions are unpreserved for our review inasmuch as they are raisedhere for the first time (see Matter ofGibson v Fischer, 56 AD3d 916, 916 [2008]; Matter of Sinanaj v Goord, 48 AD3d 848, 848 [2008]).
Cardona, P.J., Mercure, Rose, Kavanagh and Stein, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.