IN RE: Eddie DIAZ (2019)

MEMORANDUM AND JUDGMENT

Petitioner, a prison inmate, worked in one of the industry shops at the facility where he was incarcerated.  Following a verbal exchange with a civilian supervisor, petitioner was charged in a misbehavior report with refusing a direct order, harassment and lying.  At the conclusion of the ensuing tier II disciplinary hearing, petitioner was found guilty of refusing a direct order and harassment and not guilty of the remaining charge, and a penalty was imposed.  Petitioner's administrative appeal was unsuccessful, prompting him to commence this CPLR article 78 proceeding to challenge respondent's determination.

We confirm.  Preliminarily, petitioner's procedural claims – that the misbehavior report failed to comply with the requirements of 7 NYCRR 251–3.1(b), that such report did not afford him sufficient notice of the charges against him and that he otherwise was deprived of due process – are unpreserved for our review due to petitioner's failure to register appropriate objections at the disciplinary hearing (see Matter of Jones v. Annucci, 166 A.D.3d 1174, 1176, 87 N.Y.S.3d 723 [2018];  Matter of Soto v. Central Off, Review Comm. of the Dept. of Corrections & Community Supervision, 118 A.D.3d 1229, 1230, 989 N.Y.S.2d 147 [2014];  Matter of Abrams v. Fischer, 109 A.D.3d 1030, 1031, 971 N.Y.S.2d 361 [2013] ).  In any event, the fact that a correction sergeant assisted the civilian supervisor in writing the misbehavior report is of no moment, as the civilian supervisor, who “observed the incident” with petitioner (7 NYCRR 251–3.1[b] ), signed the misbehavior report and testified at the hearing.  Further, despite his awareness of the correction sergeant's involvement, petitioner did not request that the correction sergeant testify at the hearing (see Matter of Nieves v. Annucci, 123 A.D.3d 1368, 1369, 997 N.Y.S.2d 847 [2014] ).

As to the sustained charges, the misbehavior report, the testimony of the civilian supervisor and petitioner's own testimony, wherein he admitted that he used profanity “in a joking manner” during his exchange with the civilian supervisor, provide substantial evidence to support the finding of guilt (see Matter of Cosme v. New York State Dept. of Corr. & Community Supervision, 168 A.D.3d 1327, 1328, 92 N.Y.S.3d 745 [2019];  Matter of Lopez v. Department of Corr. & Community Supervision, 142 A.D.3d 1238, 1239, 38 N.Y.S.3d 624 [2016] ).  Petitioner's stated explanations for his behavior presented a credibility issue for the Hearing Officer to resolve (see e.g. Matter of McDonald v. Annucci, 159 A.D.3d 1216, 1217, 69 N.Y.S.3d 841 [2018] ), and the fact the he eventually complied with the civilian supervisor's requests does not obviate his initial refusal to obey a direct order (see Matter of Gaston v. Annucci, 148 A.D.3d 1447, 1447, 49 N.Y.S.3d 585 [2017];  Matter of Crenshaw v. Fischer, 87 A.D.3d 1189, 1189–1190, 929 N.Y.S.2d 346 [2011] ).  Finally, contrary to petitioner's assertion, insolent behavior is sufficient to constitute harassment (see Matter of Johnson v. Lee, 166 A.D.3d 1275, 1275, 88 N.Y.S.3d 597 [2018];  Matter of Mays v. Early, 161 A.D.3d 1412, 1413, 73 N.Y.S.3d 772 [2018];  Matter of Wigfall v. New York State Dept. of Corr. & Community Supervision, 160 A.D.3d 1332, 1333, 75 N.Y.S.3d 341 [2018];  Matter of Lopez v. Department of Corr. & Community Supervision, 142 A.D.3d at 1239, 38 N.Y.S.3d 624).  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 confirmed, without costs, and petition dismissed.

Garry, P.J., Egan Jr., Lynch, Clark and Pritzker, JJ., concur.