Opinion
533119
01-27-2022
In the Matter of Earl WATSON, Petitioner, v. J. WERLAU, as Shawangunk Correctional Facility Captain, et al., Respondents.
Earl Watson, Dannemora, petitioner pro se. Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondents.
Earl Watson, Dannemora, petitioner pro se.
Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondents.
Before: Garry, P.J., Egan Jr., Lynch, Pritzker and Colangelo, JJ.
MEMORANDUM AND JUDGMENT
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 Superintendent of Shawangunk Correctional Facility finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with refusing a direct order, creating a disturbance and being out of place. According to the misbehavior report, a correction officer gave petitioner a direct order to lock in his cell because recreation time was over. Petitioner argued with the correction officer that he was allowed longer recreation time. When the correction officer repeated the direct order to petitioner to lock in his cell, petitioner became louder and other inmates started to pay attention to the incident. Another correction officer became involved and walked petitioner to his cell. Following a tier II disciplinary hearing, petitioner was found guilty of all charges. Other than a modification of the penalty imposed, the determination of guilt was affirmed upon administrative appeal. This CPLR article 78 proceeding ensued.
Contrary to petitioner's contention, the misbehavior report and testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Urena v. Keyser, 197 A.D.3d 1452, 1452, 151 N.Y.S.3d 653 [2021] ; Matter of Snyder v. Annucci, 188 A.D.3d 1346, 1347, 136 N.Y.S.3d 170 [2020] ; Matter of Brown v. Venettozzi, 162 A.D.3d 1434, 1435, 81 N.Y.S.3d 243 [2018] ). To the extent that petitioner asserts that his conduct was justified because he was entitled to more recreation time, we note that petitioner is not free to disregard a direct order, even if he believes the order was wrong or unauthorized (see Matter of Anselmo v. Annucci, 173 A.D.3d 1589, 1589, 102 N.Y.S.3d 803 [2019] ; Matter of Credell v. Hurt, 167 A.D.3d 1113, 1115, 89 N.Y.S.3d 416 [2018], lv denied 32 N.Y.3d 919, 2019 WL 1407347 [2019] ). Petitioner's remaining contentions are unpreserved as they were not raised upon administrative appeal (see Matter of Urena v. Keyser, 197 A.D.3d at 1452, 151 N.Y.S.3d 653 ; Matter of Davis v. Lempke, 148 A.D.3d 1366, 1367, 48 N.Y.S.3d 630 [2017] ).
Garry, P.J., Egan Jr., Lynch, Pritzker and Colangelo, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.