Opinion
November 24, 1993
Appeal from the Supreme Court, Washington County.
Petitioner was found guilty after a Superintendent's hearing of violating prison disciplinary rule 102.10 ( 7 NYCRR 270.2 [B] [3] [i] [making a threat]). The Hearing Officer dismissed charges that petitioner had disobeyed a direct order or created a disturbance. After affirmance on administrative appeal, petitioner initiated the instant proceeding contending that the determination is not supported by substantial evidence and that the Hearing Officer was not impartial.
The record shows that on August 3, 1992 petitioner was served with an inmate misbehavior report alleging that he disobeyed a direct order, created a disturbance and uttered a threat during the morning mess on August 3, 1992. The report was authored by Correction Officer C. Zeunges and provided the sole support of the charges at the hearing. Petitioner was limited to calling three inmate witnesses, each of whom testified that no such incident occurred. Correction Officer B. Cicero, who was in charge of petitioner's company, heard petitioner making statements with some of the same words used in the misbehavior report, but rather than a threat toward Zeunges, Cicero heard petitioner make a few comments to an inmate who was being searched to the effect "don't worry about it". While a misbehavior report may alone meet the standards of the substantial evidence test (see, People ex rel. Vega v Smith, 66 N.Y.2d 130, 139-140; see also, Matter of Foster v Coughlin, 76 N.Y.2d 964), those standards have not been met in the instant matter. The allegations contained in the report were essentially discredited not only by the correction officer in charge of and who observed petitioner, but also by the testimony of petitioner and his three inmate witnesses. That testimony was sufficient to result in the outright dismissal of the two charges which were basic elements of the alleged overall incident of which the remaining charge was a part. In view of the entire record, the misbehavior report was inadequate to substantiate the remaining charge. Accordingly, the determination must be annulled.
Mercure, Crew III and White, JJ., concur. Adjudged that the determination is annulled, with costs, and petition granted.