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Lau v. Artus

Appellate Division of the Supreme Court of New York, Third Department
Feb 3, 2011
81 A.D.3d 1024 (N.Y. App. Div. 2011)

Opinion

No. 510191.

February 3, 2011.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Clinton County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

John Lau, Dannemora, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany, (Peter H. Schiff of counsel), for respondent.

Before: Peters, J.P., Lahtinen, Stein, McCarthy and Egan Jr., JJ.


Petitioner, a prison inmate, was being escorted with 34 other inmates to the recreation yard when a fight broke out between two of the inmates. The inmates were given several direct orders to turn and face the wall, but instead participated in an organized effort to prevent staff from responding to the fight. After petitioner was identified from the block yard list, he was served with a misbehavior report charging him with refusing a direct order, interfering with staff, participating in an organized stoppage and failing to follow staff direction. Following a tier III disciplinary hearing, petitioner was found guilty of all charges and the determination was upheld upon administrative review. Thereafter, petitioner commenced this CPLR article 78 proceeding to challenge the determination.

We confirm. The misbehavior report and the testimony of its author, a correction officer involved in the incident, provide substantial evidence to support the determination of guilt ( see Matter of Morusma v. Fischer, 74 AD3d 1675, 1675; Matter of Hernandez v. Bezio, 73 AD3d 1406, 1407). Petitioner's testimony that he followed orders by facing the wall and was not among those inmates who obstructed the officers raised an issue of credibility to be resolved by the Hearing Officer ( see Matter of Reid v. Fischer, 78 AD3d 1400, 1400; Matter of Wahhab v Fischer, 77 AD3d 996).

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


Summaries of

Lau v. Artus

Appellate Division of the Supreme Court of New York, Third Department
Feb 3, 2011
81 A.D.3d 1024 (N.Y. App. Div. 2011)
Case details for

Lau v. Artus

Case Details

Full title:In the Matter of JOHN LAU, Petitioner, v. DALE ARTUS, as Superintendent of…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Feb 3, 2011

Citations

81 A.D.3d 1024 (N.Y. App. Div. 2011)
2011 N.Y. Slip Op. 605
917 N.Y.S.2d 344

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