IN RE: Frank BROWN (2005)

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 which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner became loud and disruptive during an interview with a sergeant against whom he had filed five grievances.   As a result, he was charged in two misbehavior reports with harassment, lying, interfering with an employee, refusing a direct order and making threats.   Following a tier III disciplinary hearing, he was found guilty of refusing a direct order and making threats.   The determination was affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.

We confirm.   The second misbehavior report, which details the verbal exchange between petitioner and the sergeant, provides substantial evidence supporting petitioner's guilt of the charges of refusing a direct order and making threats (see People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997 [1985];  Matter of Glover v. Beaury, 205 A.D.2d 995, 614 N.Y.S.2d 936 [1994], appeal dismissed 84 N.Y.2d 922, 621 N.Y.S.2d 520, 645 N.E.2d 1220 [1994];  Matter of Patterson v. Senkowski, 204 A.D.2d 831, 832, 612 N.Y.S.2d 84 [1994] ).   His claim of retaliation presented an issue of credibility for the Hearing Officer to resolve (see Matter of Jamison v. Goord, 8 A.D.3d 860, 860, 778 N.Y.S.2d 567 [2004] ).   Petitioner's remaining contentions either have not been preserved for our review or are lacking in merit.

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