IN RE: Joseph WIGFALL (2018)

MEMORANDUM AND JUDGMENT

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 the Superintendent of Washington Correctional Facility finding petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with making threats and harassment.  According to the report, petitioner approached a correction officer, pointed his finger and, in a very threatening tone, exclaimed, “you WILL be paying me for my job today.”  When the correction officer asked if that was a threat, petitioner replied that the correction officer could take it any way that he wanted.  Following a tier II disciplinary hearing, petitioner was found guilty of both charges.  Upon administrative appeal, the determination was modified by dismissing the charge of making a threat but was otherwise affirmed.  This CPLR article 78 proceeding ensued.

We confirm.  The detailed misbehavior report and testimony from the correction officer who authored it and was involved in the incident provides substantial evidence to support the determination of guilt (see Matter of Newsome v. Selsky, 26 A.D.3d 565, 566, 807 N.Y.S.2d 725 [2006];  Matter of Barber v. Selsky, 17 A.D.3d 950, 951, 793 N.Y.S.2d 634 [2005] ).  The rule prohibiting harassment is sufficiently broad to encompass petitioner's insolent behavior toward the correction officer (see 7 NYCRR 270.2[B][8][ii];  Matter of Wells v. Dubray, 53 A.D.3d 966, 967, 862 N.Y.S.2d 187 [2008] ).  Although petitioner denied that the incident occurred, this created a credibility issue for the Hearing Officer to resolve (see Matter of Medina v. Prack, 144 A.D.3d 1273, 1274, 40 N.Y.S.3d 291 [2016];  Matter of Spikes v. Fischer, 100 A.D.3d 1231, 1231, 953 N.Y.S.2d 743 [2012], lv denied 20 N.Y.3d 862, 965 N.Y.S.2d 81, 987 N.E.2d 642 [2013] ).  Petitioner's contention that the Hearing Officer was biased is not preserved for our review due to his failure to raise it on administrative appeal (see Matter of Sandy v. Venettozzi, 134 A.D.3d 1346, 1347, 20 N.Y.S.3d 923 [2015], lv denied 27 N.Y.3d 904, 2016 WL 1692135 [2016];  Matter of Rico v. Fischer, 112 A.D.3d 1249, 1250, 976 N.Y.S.2d 751 [2013] ).  Petitioner's remaining contention is without merit.

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

Egan Jr., J.P., Devine, Clark, Mulvey and Pritzker, JJ., concur.