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In the Matter of Reginald G. v. Norman Bezio

State of New York Supreme Court, Appellate Division Third Judicial Department


July 28, 2011

IN THE MATTER OF REGINALD G. MCFADDEN, PETITIONER,
v.
NORMAN BEZIO, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, ET AL., RESPONDENTS.

MEMORANDUM AND JUDGMENT

Calendar Date: June 8, 2011

Before: Mercure, J.P., Rose, Lahtinen, Stein and McCarthy, JJ.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review two determinations of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner faxed a letter to the Cayuga County District Attorney's office complaining of the treatment he was receiving in prison and threatening to physically harm staff. As a result, he was charged in a misbehavior report with making threats. Shortly thereafter, he was charged in a second misbehavior report with refusing a direct order and violating facility movement regulations after he failed to comply with a correction officer's instructions to exit his cell. In two separate determinations following tier III disciplinary hearings, petitioner was found guilty of making threats and refusing a direct order. These determinations were affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.

The misbehavior report, testimony of the author of the report and the correction sergeant who directed him to prepare it, as well as the letter itself and petitioner's admission to writing it, provide substantial evidence supporting the determination finding petitioner guilty of making threats (see Matter of Pettus v New York State Dept. of Correctional Servs., 73 AD3d 1411, 1411 [2010]; Matter of Greci v Selsky, 8 AD3d 725 [2004]). The misbehavior report and testimony of the correction officials involved in the incident provide substantial evidence supporting the determination finding petitioner guilty of refusing a direct order (see Matter of Piper v Bezio, 81 AD3d 1049, 1050 [2011]; Matter of Lau v Artus, 81 AD3d 1024, 1025 [2011]). Petitioner's procedural and substantive contentions concerning both determinations have been reviewed and are either unpreserved or are lacking in merit.

Mercure, J.P., Rose, Lahtinen, Stein and McCarthy, JJ., concur.

ADJUDGED that the determinations are confirmed, without costs, and petition dismissed.

ENTER:

Robert D. Mayberger Clerk of the Court

20110728

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