IN RE: Gregory RAMOS (2022)

MEMORANDUM AND JUDGMENT

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Clinton County) to review a determination of respondent Superintendent of Clinton Correctional Facility finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with refusing a direct order, refusing to produce his facility identification card and creating a disturbance.  The charges stemmed from a verbal exchange between petitioner and a correction officer in the prison commissary bullpen.  At the conclusion of the tier II disciplinary hearing that followed, petitioner was found guilty of all charges and a penalty was imposed.  Petitioner's administrative appeal was unsuccessful, prompting him to commence this CPLR article 78 proceeding to challenge the determination of guilt.

The misbehavior report – standing alone – is sufficient to establish that petitioner refused a direct order to stop talking to another incarcerated individual and failed to produce his identification card at the correction officer's request (see Matter of Green v. Kirkpatrick, 167 A.D.3d 1138, 1139, 89 N.Y.S.3d 411 [3d Dept. 2018], lv denied 32 N.Y.3d 919, 2019 WL 1407422 [2019]).  Additionally, petitioner's own testimony demonstrates that the request for his identification card was part and parcel of the correction officer's alleged insistence that petitioner's commissary purchase be refunded – a transaction that petitioner admittedly refused to facilitate.  The fact that petitioner deemed the correction officer's order to be unreasonable did not excuse his failure to obey it (see Matter of Wilson v. Annucci, 205 A.D.3d 1163, 1164–1165, 169 N.Y.S.3d 172 [3d Dept. 2022];  Matter of Johnson v. Duncan, 303 A.D.2d 811, 812, 755 N.Y.S.2d 320 [3d Dept. 2003], lv denied 100 N.Y.2d 515, 769 N.Y.S.2d 202, 801 N.E.2d 423 [2003]).

As to the remaining charge, we agree with petitioner that substantial evidence was lacking to support the charge of creating a disturbance (see Matter of Hogan v. Thompson, 204 A.D.3d 1201, 1202, 164 N.Y.S.3d 537 [3d Dept. 2022];  see generally Matter of Richardson v. Annucci, 153 A.D.3d 1012, 1012, 56 N.Y.S.3d 905 [3d Dept. 2017]).  As relevant here, an incarcerated individual “shall not engage in conduct which disturbs the order of any part of the facility ․ [, which] includes ․ loud talking in a mess hall, program area or corridor” (7 NYCRR 270.2[B][5][iv]).  The misbehavior report stated that petitioner was talking to another incarcerated individual and that, after refusing to produce his identification card to a correction officer, “the other 38 [incarcerated individuals] began to take notice.”  However, the video of the incident does not reflect that petitioner's conduct disturbed the order of the commissary bullpen area (see 7 NYCRR 270.2[B][5][iv]), nor did it demonstrate that he was engaging in loud talk or other misconduct indicative of a disruption (see Matter of Hogan v. Thompson, 204 A.D.3d at 1202, 164 N.Y.S.3d 537;  Matter of Williams v. Fischer, 69 A.D.3d 1278, 1278, 895 N.Y.S.2d 539 [3d Dept. 2010]).  On this record, we cannot say that respondent's determination is supported by substantial evidence (see Matter of Hogan v. Thompson, 204 A.D.3d at 1202, 164 N.Y.S.3d 537;  Matter of Richardson v. Annucci, 153 A.D.3d at 1012, 56 N.Y.S.3d 905;  Matter of Petty v. Prack, 140 A.D.3d 1490, 1491, 35 N.Y.S.3d 510 [3d Dept. 2016]).  Accordingly, we annul that part of the determination and direct that all references to such charge be expunged from petitioner's institutional record (see Matter of Haigler v. Lilley, 182 A.D.3d 888, 889, 120 N.Y.S.3d 864 [3d Dept. 2020];  Matter of Parker v. Annucci, 175 A.D.3d 1682, 1683, 108 N.Y.S.3d 225 [3d Dept. 2019]).  As petitioner has served the administrative penalty imposed, which did not include a loss of good time, we need not remit this matter for a redetermination of the penalty (see Matter of Haigler v. Lilley, 182 A.D.3d at 889, 120 N.Y.S.3d 864).  Petitioner's remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit.

ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of creating a disturbance;  petition granted to that extent and respondents are directed to expunge all references to this charge from petitioner's institutional record;  and, as so modified, confirmed.

Garry, P.J., Clark, Aarons, Fisher and McShan, JJ., concur.