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In the Matter of Victor Mance v. Albert Prack

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


November 23, 2011

IN THE MATTER OF VICTOR MANCE, PETITIONER,
v.
ALBERT PRACK, AS ACTING DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, ET AL., RESPONDENTS.

MEMORANDUM AND JUDGMENT

Calendar Date: September 28, 2011

Before: Spain, J.P., Rose, Stein, McCarthy and Garry, JJ.

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 respondent Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.

After petitioner and another inmate were seen pushing one another, a correction officer gave them a direct order to separate and they did not comply until a response team arrived. As a result, petitioner was charged in a misbehavior report with fighting, engaging in violent conduct and refusing a direct order. During a tier III disciplinary hearing, petitioner pleaded guilty to the charge of fighting and he was found guilty of the other charges at the conclusion of the hearing. After the determination was upheld on administrative appeal, petitioner commenced this CPLR article 78 proceeding.

We confirm. To the extent that petitioner challenges the finding of guilt with regard to the charges of engaging in violent conduct and refusing a direct order, the misbehavior report, supporting documentation and testimony during the hearing, including petitioner's admissions, provide substantial evidence (see Matter of Bunting v Fischer, 85 AD3d 1473, 1474 [2011], lv denied ___ NY3d ___ [Oct. 18, 2011]; Matter of George v Bezio, 85 AD3d 1469, 1470 [2011]). We disagree with petitioner that the misbehavior report was insufficient; the report set forth the rules that he was alleged to have violated and included a detailed account of the conduct in which he was alleged to have engaged, so as to enable him to prepare a defense (see Matter of Quezada v Fischer, 85 AD3d 1462, 1462 [2011]; Matter of Cognata v Fischer, 85 AD3d 1456, 1457 [2011]).

Spain, J.P., Rose, Stein, McCarthy and Garry, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

ENTER:

Robert D. Mayberger Clerk of the Court

20111123

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