IN RE: Mario ALVAREZ

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

IN RE: Mario ALVAREZ, Petitioner, v. Philip COOMBE Jr., as Commissioner of the New York State Department of Correctional Services, et al., Respondents.

Decided: May 22, 1997

Before MIKOLL, J.P., and MERCURE, CREW, YESAWICH and PETERS, JJ. Mario Alvarez, Comstock, in pro. per. Dennis C. Vacco, Attorney-General (Marlene O. Tuczinski, of counsel), Albany, for respondents.

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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, commenced this CPLR article 78 proceeding to challenge the administrative determination which found him guilty of participating in actions detrimental to the order of the facility, refusing a direct order and failing to follow directions relating to movement within the facility.   The incident which precipitated the charges occurred on October 21, 1994 when petitioner and his “company”, while in line to be escorted from the messhall, were ordered by a correction officer to “take it down to the school gate”.   Petitioner and other members of his company failed to immediately follow this order after one inmate at the head of the line stated to the correction officer that “[w]e are not moving until he goes first”, “he” being another inmate who was then under escort for allegedly assaulting staff.   Petitioner now seeks to annul the determination based on various procedural errors and for lack of substantial evidence.   Because the issues raised lack merit, we confirm.

 Initially, we note that the misbehavior report was sufficiently detailed so as to furnish notice of the charges being lodged against petitioner and permit him to make an effective response (see, Matter of Abdur-Raheem v. Mann, 85 N.Y.2d 113, 123, 623 N.Y.S.2d 758, 647 N.E.2d 1266;  7 NYCRR 251-3.1).   The report adequately described the particulars of the incident and specifically identified petitioner as one of the inmates who had failed to move from the messhall despite having been ordered to do so (cf., Matter of Bryant v. Coughlin, 77 N.Y.2d 642, 649, 569 N.Y.S.2d 582, 572 N.E.2d 23).

 Contrary to petitioner's claim, the violations charged in the misbehavior report were not duplicative.   Though spawned by the same incident, each rule violation involved different elements and required proof of facts not essential to establish the other violations (see, Blockburger v. U.S., 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306).

 Further, the determination was supported by substantial evidence.   The written misbehavior report, which was authored by the correction officer who ordered petitioner and his company to “take it down to the school gate” and who observed the company, including petitioner, refuse to comply, combined with petitioner's admission that he did not move around the stalled inmates despite the correction officer's order, provided ample support for the finding of guilt (see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477;  Matter of Tavarez v. Goord, 237 A.D.2d 837, 838, 655 N.Y.S.2d 189, 190).   Petitioner's explanation for his inaction merely presented a credibility issue which the Hearing Officer was free to resolve against him (see, Matter of Islar v. Coombe, 226 A.D.2d 851, 640 N.Y.S.2d 650;  Matter of Dotson v. Coughlin, 191 A.D.2d 912, 913, 595 N.Y.S.2d 251, lv. denied 82 N.Y.2d 651, 601 N.Y.S.2d 580, 619 N.E.2d 658).

Given the circumstances presented, we do not find that Supreme Court acted improvidently in allowing respondents to file and serve an untimely answer (see, Matter of Marseilles Leasing Co. v. New York State Div. of Hous. & Community Renewal, 140 A.D.2d 345, 346, 527 N.Y.S.2d 837) and we therefore reject petitioner's contention that a default judgment was warranted (see, CPLR 7804[e] ).   Petitioner's remaining contentions, including his claim that the Hearing Officer was biased, have been examined and found to be baseless.

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

YESAWICH, Justice.

MIKOLL, J.P., and MERCURE, CREW and PETERS, JJ., concur.

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