Opinion
533086
11-10-2021
In the Matter of Jamel STEVENS, Petitioner, v. Michelle OSCAR, as Correction Officer at Sing Sing Correctional Facility, et al., Respondents.
Jamel Stevens, Ossining, petitioner pro se. Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondents.
Jamel Stevens, Ossining, petitioner pro se.
Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondents.
Before: Garry, P.J., Clark, Aarons, Reynolds Fitzgerald and Colangelo, JJ.
MEMORANDUM AND JUDGMENT
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 Superintendent of Sing Sing Correctional Facility finding petitioner guilty of violating certain prison disciplinary rules. Petitioner was charged in a misbehavior report with obstructing visibility, refusing a direct order and interfering with an employee. According to the report, a correction officer on rounds observed that bedsheets were being used to obstruct visibility into petitioner's cell. The officer stopped and ordered petitioner to remove the sheets. On her next rounds, the officer observed that the bedsheets were still obstructing the view into petitioner's cell and again ordered petitioner to remove them. After petitioner failed to comply, the officer issued the misbehavior report. Following a tier II disciplinary hearing, petitioner was found guilty as charged. That determination was affirmed on administrative appeal, and this CPLR article 78 proceeding ensued.
We confirm. Contrary to petitioner's contention, the incident involved a "danger to life, health, security or property," warranting the issuance of the misbehavior report ( 7 NYCRR 251–3.1 [a]). The misbehavior report and hearing testimony provide substantial evidence to support the determination of guilt (see Matter of Beltre v. Rodriguez, 185 A.D.3d 1370, 1370, 126 N.Y.S.3d 423 [2020] ; Matter of Woodward v. Annucci, 175 A.D.3d 785, 785–786, 105 N.Y.S.3d 724 [2019] ). Although petitioner testified that he had no recollection of the incident, the author of the misbehavior report testified that petitioner was awake and responsive when she ordered him to remove the bedsheets, creating a credibility issue for the Hearing Officer to resolve (see Matter of McClary v. Annucci, 189 A.D.3d 1812, 1813, 133 N.Y.S.3d 925 [2020], lv denied 37 N.Y.3d 905, 2021 WL 3925878 [2021] ; Matter of Snyder v. Annucci, 188 A.D.3d 1346, 1347, 136 N.Y.S.3d 170 [2020] ). Petitioner's remaining claims, to the extent they are properly before us, have been considered and found to be without merit.
Garry, P.J., Clark, Aarons, Reynolds Fitzgerald and Colangelo, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.