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IN RE: Richard FREJOMIL (2009)

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Richard FREJOMIL, Petitioner, v. Brian FISCHER, as Commissioner of Correctional Services, Respondent.

Decided: November 19, 2009

Before:  CARDONA, P.J., PETERS, ROSE, MALONE JR. and STEIN, JJ. Richard Frejomil, Comstock, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

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 a prison disciplinary rule.

Petitioner, an inmate who worked in the Inmate Grievance Program Office (hereinafter IGPO), commenced this CPLR article 78 proceeding challenging a determination finding him guilty of disobeying a direct order after he gave a fellow inmate certain information without prior approval from his supervisor.   The misbehavior report, together with the testimony from the author of the misbehavior report that on several occasions he and the IGPO supervisor gave the IGPO inmate employees direct orders not to give fellow inmates any paperwork without the prior approval of the IGPO supervisor, provides substantial evidence to support the determination of guilt (see Matter of Hunter v. Bezio, 65 A.D.3d 726, 883 N.Y.S.2d 655 [2009];  Matter of Freire v. Goord, 1 A.D.3d 843, 767 N.Y.S.2d 299 [2003], lv. denied 2 N.Y.3d 701, 778 N.Y.S.2d 459, 810 N.E.2d 912 [2004] ).   Petitioner's contention that no such order was issued created a credibility issue for the Hearing Officer to resolve (see Matter of Hale v. Selsky, 57 A.D.3d 1136, 1137, 871 N.Y.S.2d 426 [2008], appeal dismissed 12 N.Y.3d 776, 879 N.Y.S.2d 33, 906 N.E.2d 1066 [2009] ).

Furthermore, to the extent that petitioner relies on Matter of Cliff v. Vaughn, 275 A.D.2d 871, 713 N.Y.S.2d 374 [2000], we find that case distinguishable.   Here, the misbehavior report and testimony at the hearing establish that a direct order, rather than a warning, was in fact issued.

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

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