IN RE: Elvin LEBRON

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

IN RE: Elvin LEBRON, Petitioner, v. Dale ARTUS, as Superintendent of Clinton Correctional Facility, Respondent.

Decided: December 28, 2006

Before:  MERCURE, J.P., CREW III, SPAIN, CARPINELLO and LAHTINEN, JJ. Elvin Lebron, Dannemora, petitioner pro se. Eliot Spitzer, Attorney General, Albany (Patrick Barnett-Mulligan of counsel), for respondent.

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

As a result of petitioner's refusal to exit his cell during a mandatory call out, he was charged in a misbehavior report with a facility movement violation.   Petitioner was found guilty of the charge following a tier II disciplinary hearing, and the determination was affirmed on administrative appeal.   Thereafter, petitioner was charged in a second misbehavior report with refusing a direct order and being out of place when he failed to promptly respond to another call out.   Following another tier II disciplinary hearing, he was found guilty of being out of place and this determination was also affirmed on administrative appeal.   Petitioner subsequently commenced this CPLR article 78 proceeding challenging both determinations.

 We confirm.   The first misbehavior report provides substantial evidence supporting the determination finding petitioner guilty of violating facility movement regulations (see Matter of Davila v. Selsky, 29 A.D.3d 1247, 1248, 814 N.Y.S.2d 830 [2006] ).   Likewise, the second misbehavior report, along with petitioner's admission that he was late for the call out, provides substantial evidence supporting the determination finding him guilty of being out of place (see Matter of Lamage v. Selsky, 26 A.D.3d 699, 700, 810 N.Y.S.2d 534 [2006];  Matter of Scott v. New York State Dept. of Corrections, 18 A.D.3d 925, 793 N.Y.S.2d 921 [2005] ).   Petitioner's remaining contentions either have not been preserved for our review or are lacking in merit.

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

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