| Matter of Crenshaw v Fischer |
| 2011 NY Slip Op 06621 [87 AD3d 1246] |
| September 29, 2011 |
| Appellate Division, Third Department |
| In the Matter of William Crenshaw, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco 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 found petitionerguilty of violating a prison disciplinary rule.
Petitioner was charged in a misbehavior report with disobeying a direct order after he refusedto report to a sergeant's office as directed by a correction officer. Following a tier III disciplinaryhearing, petitioner was found guilty of the charge. After the determination was upheld onadministrative appeal, this CPLR article 78 proceeding ensued.
We confirm. The detailed misbehavior report, along with the testimony of the sergeant whohad requested petitioner's presence for an interview concerning a grievance investigation, providesubstantial evidence to support the determination of guilt (see Matter of Lovett v Smith, 80 AD3d 1039, 1040 [2011]).Although petitioner maintains that it was improper for the sergeant to summon him because hehad earlier made known his wish not to participate in the investigation, "[i]nmates are not free tochoose which orders they will obey or to dictate the terms thereof" (Matter of Tafari vMcGinnis, 307 AD2d 502, 503 [2003]). Under these circumstances, we find no basis todisturb the determination of guilt (seeMatter of Miller v Goord, 2 AD3d 928, 930 [2003]). To the extent that petitioner alsoclaims that the Hearing Officer was biased against him, such contention is unpreserved for ourreview, as petitioner failed to raise that issue in his [*2]administrative appeal (see Matter of Boyd v Fischer, 74 AD3d 1679, 1680 [2010]).
Finally, petitioner's remaining arguments, including his assertion that the determinationshould be annulled because the misbehavior report was served against him in retaliation for himfiling a grievance, have been examined and found to be unpersuasive.
Mercure, J.P., Spain, Lahtinen, Kavanagh and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.