IN RE: Stanley MOORE

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

IN RE: Stanley MOORE, Petitioner, v. James WALSH, as Superintendent of Ulster Correctional Facility, Respondent.

Decided: January 23, 2003

Before:  CARDONA, P.J., CREW III, SPAIN, CARPINELLO and LAHTINEN, JJ. Stanley Moore, Beacon, 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 Ulster County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was found guilty of violating the prison disciplinary rule prohibiting inmates from making threats against staff members.   According to the misbehavior report, petitioner, a vegetarian, caused a delay in the mess hall line for the second day in a row by demanding a meatless meal.   When the reporting correction officer approached petitioner and reminded him that he had been warned to refrain from this conduct, petitioner responded, “Let's you and me go outside right now.”   The officer interpreted this statement as a threat and subsequently filed the instant misbehavior report against petitioner.

The determination of petitioner's guilt is supported by substantial evidence in the form of the misbehavior report, the testimony of the correction officer who prepared the report after witnessing the conduct in question and the testimony of a second correction officer who testified that he had observed petitioner in the mess hall line speaking in a raised voice that had caused him and the reporting officer to approach petitioner (see Matter of Johnson v. Ricks, 297 A.D.2d 889, 747 N.Y.S.2d 402;  Matter of Backman v. Goord, 291 A.D.2d 717, 738 N.Y.S.2d 424).   The conflict between the perception of the reporting officer, who testified that petitioner had threatened him by asking him to “go outside,” and that of petitioner, who testified that he meant only to suggest that they should proceed outside to discuss the matter with the officer's supervisor, presented an issue of credibility for the Hearing Officer to resolve (see Matter of Cliff v. Selsky, 293 A.D.2d 885, 740 N.Y.S.2d 532;  Matter of Bell v. Couture, 267 A.D.2d 653, 699 N.Y.S.2d 757).   Petitioner's assertion that procedural errors violated his right to a fair hearing have been reviewed and found to lack merit.

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

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