IN RE: Michael RONCINI

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

IN RE: Michael RONCINI, Petitioner, v. Glenn S. GOORD, as Commissioner of Correctional Services, Respondent.

Decided: May 26, 2005

Before:  SPAIN, J.P., CARPINELLO, ROSE, LAHTINEN and KANE, JJ. Callanen, Foley & Hobika L.L.P., Utica (Ronald Cohen, New York City, of counsel), for petitioner. Eliot Spitzer, Attorney General, Albany (Marlene O. Tuczinski of counsel), for respondent.

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

Petitioner became involved in a verbal exchange with a correction officer during which he expressed his dislike for the officer and stared at him, and later called him a vulgar name while the officer was handing out commissary sheets.   When petitioner learned that he was being placed on cell restriction because of such conduct, he became argumentative, demanded to speak with a sergeant and repeatedly left his cell without permission.   Thereafter, petitioner was charged in a misbehavior report with making threats, engaging in verbal harassment, creating a disturbance and refusing a direct order.   He was found guilty of two of the charges, engaging in verbal harassment and refusing a direct order, following a tier III disciplinary hearing.   After the determination was affirmed on administrative appeal, petitioner commenced this CPLR article 78 proceeding challenging it.

We confirm.   The correction officer who authored the misbehavior report testified that petitioner made threatening statements to him and called him a vulgar name while he was passing out commissary sheets.   He further stated that, after petitioner was placed on cell confinement, petitioner left his cell without permission to speak with a sergeant.   Notably, petitioner admitted that he left his cell three times without permission even though he had been directed to return to his cell and stay there.   Petitioner's assertions that he did not know he was supposed to remain in his cell and that the charges were fabricated by the author of the misbehavior report presented credibility issues for the Hearing Officer to resolve (see Matter of Black v. Goord, 12 A.D.3d 1005, 1006, 784 N.Y.S.2d 911 [2004];  Matter of Pryce v. Goord, 281 A.D.2d 665, 665, 721 N.Y.S.2d 570 [2001] ).   The hearing testimony, together with the misbehavior report, provided substantial evidence supporting the determination of guilt (see Matter of Thorpe v. Goord, 13 A.D.3d 690, 690-691, 785 N.Y.S.2d 601 [2004];  Matter of Ragin v. Goord, 1 A.D.3d 842, 843, 767 N.Y.S.2d 298 [2003] ).   Therefore, we decline to disturb it.

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

KANE, J.

SPAIN, J.P., CARPINELLO, ROSE and LAHTINEN, JJ., concur.

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