| Matter of Owens v Fischer |
| 2010 NY Slip Op 06265 [75 AD3d 1020] |
| July 29, 2010 |
| Appellate Division, Third Department |
| In the Matter of David Owens, 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 Washington County) to review a determination of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
Following an incident during which petitioner, a prison inmate, turned abruptly towardscorrection officers while being frisked, he was served with a misbehavior report charging himwith refusing to obey a direct order, attempted assault on staff and a movement regulationviolation. Following a tier III disciplinary hearing, petitioner was found guilty of the first twocharges and not guilty of the movement violation. His administrative appeal proved unavailing,and he thereafter commenced this CPLR article 78 proceeding to challenge thedetermination.[FN*][*2]
Initially, inasmuch as petitioner conceded during thehearing that he turned toward the correction officers after being instructed not to do so, thatadmission, along with the misbehavior report, testimony of the correction officers involved andinvestigative reports, provide substantial evidence to support the determination of guilt as to thedirect order charge (see Matter ofBosquet v Bezio, 69 AD3d 1257, 1257 [2010]; Matter of Davis v Fischer, 64 AD3d 847, 847-848 [2009], lvdenied 13 NY3d 709 [2009]). However, we do not reach the same conclusion with regard tothe charge of attempted assault on staff. It is undisputed that although petitioner turned towardthe correction officers, he made no attempt to kick, punch or strike them and was not acting inany manner that was aggressive or threatening. Thus, the record does not provide substantialevidence to support the determination that petitioner "attempt[ed] to inflict bodily [harm] uponany staff member" (7 NYCRR 270.2 [B] [1] [ii]), and that part of the determination must beannulled. As no loss of good time was imposed, we need not remit the matter for aredetermination of the penalty (seeMatter of Williams v Fischer, 69 AD3d 1278, 1278 [2010]).
Cardona, P.J., Spain, Rose, Malone Jr. and McCarthy, JJ., concur. Adjudged that thedetermination is modified, without costs, by annulling so much thereof as found petitioner guiltyof attempted assault on staff; petition granted to that extent and respondent is directed toexpunge all references thereto from petitioner's institutional record; and, as so modified,confirmed.
Footnote *: It appears from the record thatpetitioner submitted a second petition to Supreme Court, dated June 10, 2009, under the sameindex No. 15134. That petition sought review of a determination of respondent which foundpetitioner guilty of violating certain prison disciplinary rules following a tier III disciplinaryhearing that concluded on January 8, 2009. Inasmuch as respondent did not answer that petitionand that proceeding was not transferred by Supreme Court, it is not properly before this Court.