| Matter of Gentle v Bezio |
| 2010 NY Slip Op 08410 [78 AD3d 1398] |
| November 18, 2010 |
| Appellate Division, Third Department |
| In the Matter of Kevin Gentle, Petitioner, v Norman R. Bezio, as Directorof 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 Supreme Court,entered in Albany County) to review a determination of the Commissioner of Correctional Serviceswhich found petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, was informed that he would be leaving the facility where he wasincarcerated for a 10-day medical trip and was placed in a holding area while correction officerspacked items from his cell. When petitioner came to believe that he was being taken for a courtappearance rather than a medical trip, he became irate and objected in a loud and profane manner.Petitioner was given several direct orders to calm down, but he failed to comply. As a result, he wasserved with a misbehavior report and, after a tier III disciplinary hearing, was found guilty of creating adisturbance and refusing a direct order. That determination was affirmed on administrative appeal, afterwhich petitioner commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report—authored by a correction officer who witnessed theincident—and the testimony adduced at the hearing provide substantial evidence to support thedetermination of guilt (see Matter of Weems vFischer, 75 AD3d 681, 682 [2010]; Matter of McIver v Fischer, 62 AD3d 1174 [2009]). Althoughpetitioner argues that the testimony of the correction officers controverts the allegations in themisbehavior report, we note that these [*2]witnesses only interactedwith petitioner in his cell before he was taken to the holding cell; by petitioner's own admission, theywere not present at the holding cell where the behavior that gave rise to the misbehavior reportoccurred.
Petitioner's remaining arguments have been found to be unpreserved or without merit.
Spain, J.P., Rose, Kavanagh, Stein and Egan Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.