IN RE: Edward MONTCRIEFT

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

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

Decided: September 18, 2003

Before:  CARDONA, P.J., MERCURE, PETERS, SPAIN and CARPINELLO, JJ. Edward Montcrieft, Brocton, petitioner pro se. Eliot Spitzer, Attorney General, Albany (Andrea Oser of counsel), for respondent.

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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner challenges a determination finding him guilty of violating the prison disciplinary rules prohibiting creating a disturbance, interference with an employee and refusing a direct order.   Petitioner also pleaded guilty to unauthorized exchange of property.1  As described in the misbehavior report, petitioner was seen involved in an unauthorized exchange between the cells on either side of his cell.   Petitioner refused several direct orders from two correction officers to lock in.   Thereafter, when a cell search was to be conducted, petitioner refused orders to come out of his cell and only did so after correction officers began taking steps to remove him by force.   Contrary to petitioner's assertion, the misbehavior report and videotape of the incident provide substantial evidence to support the determination of guilt (see Matter of Thomas v. Goord, 293 A.D.2d 799, 739 N.Y.S.2d 501 [2002], appeal dismissed 98 N.Y.2d 727, 749 N.Y.S.2d 476, 779 N.E.2d 187 [2002] ).   Although petitioner explained that he was reluctant to come out of his cell until he spoke with the watch commander in order to verify the legality of the impending cell search, an inmate is required to comply with an order of a correction officer at the time it is given even if the order appears to be without authority (see Matter of Norman v. Wood, 261 A.D.2d 755, 691 N.Y.S.2d 204 [1999];  Matter of Grant v. Coombe, 240 A.D.2d 784, 659 N.Y.S.2d 799 [1997] ).   Petitioner's remaining contentions, including his assertions that the author of the misbehavior report was permitted to testify outside the scope of the misbehavior report and that the penalty imposed was excessive, have been reviewed and found to be without merit.

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

FOOTNOTES

1.   Petitioner's plea of guilty to the charge of unauthorized exchange of property precludes any challenge to the evidentiary basis for finding him guilty of this charge (see Matter of Pinkney v. Goord, 302 A.D.2d 820, 754 N.Y.S.2d 599 [2003] ).

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