IN RE: Efrain J. MUNIZ (2006)

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 Superintendent of Gouverneur Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, an inmate, was charged in a misbehavior report with disobeying a direct order, being out of place and harassing an employee after he refused orders to report to his assigned program and made an obscene comment about a counselor.   A tier II disciplinary hearing was held, and petitioner was found guilty of all charges and a penalty was imposed.   Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding.

The misbehavior report, written by the correction officer who issued the direct orders and endorsed by the counselor who ascertained the facts of the incident, provides substantial evidence to support the determination of guilt (see Matter of McNear v. Selsky, 25 A.D.3d 1043, 1044, 808 N.Y.S.2d 818 [2006];  Matter of Russell v. Selsky, 22 A.D.3d 998, 999, 802 N.Y.S.2d 800 [2005];  see also 7 NYCRR 251-3.1[b] ).  Although petitioner contends that he was unable to comply with the orders because he was feeling ill, evidence at the hearing revealed that petitioner did not request an excuse from the medical department and had no medical problem that would have prevented him from attending the assigned program (see Matter of Moreno v. Goord, 30 A.D.3d 708, 709, 817 N.Y.S.2d 173 [2006];  Matter of Zhong v. Selsky, 307 A.D.2d 498, 499, 763 N.Y.S.2d 350 [2003] ).   In addition, the penalty imposed after the Hearing Officer considered petitioner's disciplinary record and the mitigating factors surrounding the incident was not excessive.   Petitioner's remaining arguments are unpreserved for our review and, in any event, lack merit.

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