| Matter of Rohs v Fischer |
| 2010 NY Slip Op 03820 [73 AD3d 1256] |
| May 6, 2010 |
| Appellate Division, Third Department |
| In the Matter of Robert Rohs, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
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Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Sullivan County) to review a determination of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate who is deaf and blind in one eye, was being escorted into themess hall when he was given an order by a correction officer to tuck in his shirt. Petitionerargued that the regulations did not require him to do so, but finally complied with the order.Because of the confrontation, however, other inmates were unable to proceed into the mess hall.As a result, petitioner was served with a misbehavior report charging him with creating adisturbance, refusing a direct order and interfering with an employee. Following a tier IIIdisciplinary hearing, petitioner was found guilty of all charges. The determination of guilt wasupheld on administrative appeal, prompting petitioner to commence this CPLR article 78proceeding.
We confirm. The detailed misbehavior report and the testimony of the correction officer whoauthored it, petitioner's inmate witness and petitioner's own testimony provide substantialevidence to support the determination (see Matter of Covington v Smith, 63 AD3d 1453, 1454 [2009],lv denied 13 NY3d 709 [2009]; Matter of Wade v Artus, 59 AD3d 793, 794 [2009], appealdismissed 12 NY3d 872 [2009]). Despite petitioner's contention that he had difficulty [*2]communicating with the correction officer, both he and his inmatewitness testified that petitioner understood the request to tuck in his shirt and initially refused todo so because he believed it was not required. To the extent that petitioner's version of eventsmay have differed in other respects from that of the correction officer who authored the report,that raised a credibility issue to be resolved by the Hearing Officer (see Matter of Jones v Fischer, 69AD3d 1065, 1066 [2010]; Matterof McLaughlin v Fischer, 69 AD3d 1071, 1072 [2010]). Finally, although petitionercontends that the order was not communicated to him in a manner that he was able tounderstand, as required by Department of Correctional Services Directive No. 2612, the recordshows that petitioner's inmate escort knew sign language and was able to communicate the orderto petitioner.
Peters, J.P., Rose, Malone Jr., McCarthy and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.