IN RE: David BURR

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

IN RE: David BURR, Petitioner, v. Glenn S. GOORD, as Commissioner of Correctional Services, et al., Respondents.

Decided: June 24, 2004

Before:  MERCURE, J.P., SPAIN, CARPINELLO, MUGGLIN and KANE, JJ. David Burr, Wallkill, petitioner pro se. Eliot Spitzer, Attorney General, Albany (Nancy A. Spiegel of counsel), for respondents.

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 respondent Superintendent of Shawangunk Correctional Facility which found petitioner guilty of violating a prison disciplinary rule.

Following a disciplinary hearing, petitioner was found guilty of disobeying a direct order and not guilty of creating a disturbance.   Petitioner thereafter commenced this CPLR article 78 proceeding challenging the determination of guilt.   The misbehavior report relates that after being seen on sick call, petitioner refused multiple orders to return to his cell.   Petitioner eventually complied once the area supervisor was called.   At the hearing, petitioner acknowledged that he failed to comply with the orders but claimed that he could not walk back to his cell without assistance.   The misbehavior report, testimony from the correction officers involved in the incident and petitioner's own explanation provide substantial evidence to support the determination of guilt (see Matter of Cepeda v. Goord, 305 A.D.2d 914, 758 N.Y.S.2d 866 [2003], lv. denied 100 N.Y.2d 511, 766 N.Y.S.2d 165, 798 N.E.2d 349 [2003];  Matter of Allende v. Selsky, 302 A.D.2d 764, 754 N.Y.S.2d 916 [2003] ).   We are unpersuaded by petitioner's assertion that the inconsistency in the exact number of orders issued by the area supervisor warrants annulment of the determination as there is no dispute that an order, in fact, was issued and petitioner failed to comply.   Petitioner's remaining contention challenging a gap in the hearing transcript has been reviewed and found to be without merit.

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

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