IN RE: Terry DAUM

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

IN RE: Terry DAUM, Petitioner, v. Glenn S. GOORD, as Commissioner of the Department of Correctional Services, et al., Respondents.

Decided: March 23, 2000

Before:  CARDONA, P.J., MERCURE, CREW III, PETERS and MUGGLIN, JJ. Terry Daum, Pine City, petitioner in person. Eliot Spitzer, Attorney-General (Denise A. Hartman of counsel), Albany, for respondents.

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

In two misbehavior reports, petitioner was charged with violating several prison disciplinary rules stemming from one incident wherein he became physically combative with a correction officer who had issued a direct order and a subsequent incident wherein he broke a light fixture while resisting the direct order of another correction officer.   After a tier III disciplinary hearing on both misbehavior reports, petitioner was found guilty of violent conduct, assaulting a staff member, interfering with an employee, refusing a direct order and violating a movement regulation in connection with the first incident, and interfering with an employee, refusing a direct order and damaging State property in connection with the second incident.   The determination was affirmed on administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding.

 We confirm.   With regard to the first misbehavior report, the testimony of the correction officer petitioner assaulted and the corroborating testimony of several other correction officers who witnessed the incident reveal that petitioner disobeyed the correction officer's direct order to return to his cell and threw a garbage can lid, striking the officer in the shin.   Once petitioner was released into his cell, he struck the correction officer in the jaw with his fist.   As for the second misbehavior report, it indicated that many correction officers witnessed petitioner refuse a direct order to place his hands through the cell bars to be handcuffed and transported to the special housing unit.   During the course of this event, petitioner attempted to remove a light fixture from his cell and threw another light fixture through his cell bars, breaking it.

 Upon reviewing this evidence and the remaining proof offered at the hearing, we conclude that substantial evidence supports the determination of petitioner's guilt on all charges (see, Matter of Green v. Selsky, 264 A.D.2d 908, 696 N.Y.S.2d 94, lv. denied 94 N.Y.2d 757, 704 N.Y.S.2d 532, 725 N.E.2d 1094;  Matter of Rucano v. Goord, 264 A.D.2d 888, 695 N.Y.S.2d 202;  Matter of Ragland v. Great Meadow Correctional Facility, 243 A.D.2d 977, 662 N.Y.S.2d 870).   Contrary to petitioner's contention, his defense that the misbehavior reports were issued in retaliation for a grievance that he had filed against the correction officer who authored the first report is unsubstantiated by the record and merely created a credibility issue for the Hearing Officer to resolve (see, Matter of Jackson v. Goord, 263 A.D.2d 726, 693 N.Y.S.2d 686, lv. denied 94 N.Y.2d 753, 700 N.Y.S.2d 427, 722 N.E.2d 507;  Matter of Alamin v. New York State Dept. of Correctional Servs., 253 A.D.2d 948, 679 N.Y.S.2d 425).

 Finally, petitioner's procedural claims were not raised at the disciplinary hearing and are therefore not preserved for appellate review (see, Matter of Odom v. Goord, 243 A.D.2d 1019, 665 N.Y.S.2d 353;  Matter of Melendez v. Coombe, 233 A.D.2d 630, 649 N.Y.S.2d 841).   In any event, were we to review the arguments, we would find them to be unpersuasive.

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

PETERS, J.

CARDONA, P.J., MERCURE, CREW III and MUGGLIN, JJ., concur.

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