IN RE: Frank GRAHAM

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

IN RE: Frank GRAHAM, Petitioner, v. Harold McKINNEY, as Superintendent of Mt. McGregor Correctional Facility, Respondent.

Decided: December 29, 2005

Before:  CARDONA, P.J., MERCURE, CREW III, PETERS and CARPINELLO, JJ. Frank Graham, Wilton, petitioner pro se. Eliot Spitzer, Attorney General, Albany (Nancy A. Spiegel of counsel), for respondent.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Saratoga County) to review two determinations of respondent which found petitioner guilty of violating certain prison disciplinary rules.

On September 30, 2004, petitioner became loud and used profane language toward a correction officer after the officer instructed him to wear proper attire while lying on his bed and to remove a robe covering his head.   As a result, petitioner was charged in a misbehavior report with harassment, disturbing the order of the facility and failing to maintain orderly living quarters.   Shortly thereafter, he became embroiled in an argument with the same correction officer, again using profanity, after the officer instructed him to get dressed.   He was charged in a second misbehavior report with harassment.   Petitioner was found guilty of the charges contained in both reports following two tier II disciplinary hearings.   On administrative appeal, the first determination was modified and the charge of failing to maintain orderly living quarters was dismissed, while the second determination was affirmed.   This CPLR article 78 proceeding ensued.

The detailed misbehavior report in the first disciplinary proceeding (see Matter of Encarnacion v. Goord, 19 A.D.3d 906, 907, 797 N.Y.S.2d 178 [2005] ) and the misbehavior report and hearing testimony in the second disciplinary proceeding (see Matter of Mendez v. Goord, 21 A.D.3d 1191, 800 N.Y.S.2d 858 [2005] ) provide substantial evidence of petitioner's guilt.   His claim that the reports were written in retaliation for his filing grievances against the correction officer who authored them presented a credibility issue for the Hearing Officer to resolve (see Matter of Branch v. Goord, 4 A.D.3d 699, 700, 772 N.Y.S.2d 426 [2004] ).   Consequently, we find no reason to disturb the determinations.

ADJUDGED that the determinations are confirmed, without costs, and petition dismissed.

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