Plaintiffs prison disciplinary misconduct sanctions were affirmed on December 6, 2018 following an administrative appeal, a separate N.Y. C.P.L.R. Article 78 proceeding and an appeal to the Appellate Division, Third Department. Credellv. Hurt, 167 A.D.3d 1113, 1114 (3d Dept. 2018) Iv. den. 32 N.Y.3d 919 (2019).
To the extent that the misbehavior report contained certain clerical errors, we are satisfied that it provided petitioner sufficient notice of the charges against her and afforded her an opportunity to prepare a defense; we further note that petitioner has failed to demonstrate that she was prejudiced by any discrepancies in this regard (see Matter of Bellamy v Noeth, 195 A.D.3d 1289, 1289-1290 [3d Dept 2021]). Finally, "it is the function of the review officer, based upon the seriousness of the charges and the appropriate corresponding penalty in the event the charges are substantiated, to determine the tier classification" (Matter of Pettus v Selsky, 28 A.D.3d 1043, 1043-1044 [3d Dept 2006]; accord Matter of Credell v Hurt, 167 A.D.3d 1113, 1114 [3d Dept 2018], lv denied 32 N.Y.3d 919 [2019]; see 7 NYCRR 251-2.2). Both possession of contraband and smuggling may be classified as either tier I, II or III offenses (see 7 NYCRR 270.2 [B] [14] [xiii]; [15]), and we perceive no abuse of the review officer's discretionary classification of tier II in this matter.
Under the circumstances presented here, we agree. Generally, the facility review officer is charged with reviewing each misbehavior report issued and, considering the seriousness of the alleged violations in the report, determining the appropriate tier level classification (see 7 NYCRR 251-2.2, 270.3; Matter of Credell v Hurt, 167 A.D.3d 1113, 1114 [3d Dept 2018], lv denied 32 N.Y.3d 919 [2019]). Here, petitioner, both during the hearing and in his administrative appeal, challenged certain actions taken by the facility review officer concerning his review of the misbehavior report.
Contrary to petitioner's contention, the misbehavior report and testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter ofUrena v. Keyser, 197 A.D.3d 1452, 1452, 151 N.Y.S.3d 653 [2021] ; Matter ofSnyder v. Annucci, 188 A.D.3d 1346, 1347, 136 N.Y.S.3d 170 [2020] ; Matter ofBrown 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 ofAnselmo v. Annucci, 173 A.D.3d 1589, 1589, 102 N.Y.S.3d 803 [2019] ; Matter ofCredell 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 ofUrena v. Keyser, 197 A.D.3d at 1452, 151 N.Y.S.3d 653 ; Matter ofDavis v. Lempke, 148 A.D.3d 1366, 1367, 48 N.Y.S.3d 630 [2017] ).
ltering the IGCR itinerary, together with the misbehavior report, related documentation and supporting testimony at the hearing provided substantial evidence to support the determination of guilt (see Matter of Govia v New York State Dept. of Corr. & Community Supervision, 171 AD3d 1323, 1324 [2019]; Matter of Kim v Annucci, 128 AD3d 1196, 1197 [2015]; Matter of Darvie v Fischer, 72 AD3d 1306, 1306 [2010]), notwithstanding petitioner's proffered justification for his conduct which, as aptly found by the Hearing Officer, implicates correctional facility safety and security (see Matter of Robinson v Lee, 155 AD3d 1169, 1170 [2017]). As to petitioner's procedural claims, inasmuch as a tier III classification was authorized by the pertinent regulation (see 7 NYCRR 270.2 [B] [17] [iii]), and given the serious nature of the conduct resulting in the violations, we are unpersuaded that there was an abuse of the review officer's discretionary tier classification of the misbehavior report (see Matter of Credell v Hurt, 167 AD3d 1113, 1114 [2018], lv denied 32 NY3d 919 [2019]; Matter of Pettus v Selsky, 28 AD3d 1043, 1043-1044 [2006]). To the extent that petitioner contends that the Hearing Officer was biased, the record reflects that the hearing was fair and impartial and that the determination of guilt flowed from the evidence presented, which included petitioner's admissions of altering the IGCR itinerary, and not from any alleged bias on the part of the Hearing Officer (see Matter of Moses v Venettozzi, 188 AD3d 1344, 1345 [2020]; Matter of Medina v Ranieri, 186 AD3d 1848, 1849 [2020]).
We confirm. The misbehavior report and hearing testimony provide substantial evidence to support the determination of guilt (seeMatter of Credell v. Hurt, 167 A.D.3d 1113, 1114, 89 N.Y.S.3d 416 [2018], lv denied 32 N.Y.3d 919, 2019 WL 1407347 [Mar. 28, 2019] ; Matter of Green v. Kirkpatrick, 165 A.D.3d 1375, 1376, 86 N.Y.S.3d 228 [2018], lv denied 32 N.Y.3d 919, 2019 WL 1407412 [Mar. 28, 2019] ). Contrary to petitioner's contention, the misbehavior report was sufficiently detailed to put him on notice of the charges against him and allow him to prepare a defense (seeMatter of Rodari v. Annucci, 166 A.D.3d 1188, 1188, 87 N.Y.S.3d 721 [2018] ; Matter of Ortiz v. Annucci, 163 A.D.3d 1383, 1384, 80 N.Y.S.3d 746 [2018] ).
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 [2021]; Matter of Snyder v Annucci, 188 A.D.3d 1346, 1347 [2020]; Matter of Brown v Venettozzi, 162 A.D.3d 1434, 1435 [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 [2019]; Matter of Credell v Hurt, 167 A.D.3d 1113, 1115 [2018], lv denied 32 N.Y.3d 919 [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; Matter of Davis v Lempke, 148 A.D.3d 1366, 1367 [2017]).