Opinion
September 26, 1991
Appeal from the Supreme Court, Washington County.
The misbehavior report, coupled with petitioner's testimony and the incident report, provided substantial evidence to support the determination that petitioner refused a direct order (see, People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139-140). Any conflicting testimony by petitioner merely created an issue of credibility for the Hearing Officer to resolve (see, Matter of Hernandez v. LeFevre, 150 A.D.2d 954, lv denied 74 N.Y.2d 615). The charge of creating a disturbance, however, is not supported by substantial evidence and the finding of guilt on that charge must be annulled. Because the penalty imposed resulted from a determination of guilt on both charges, the matter must be remitted for reconsideration of a proper penalty (see, Matter of Nowlin v. LeFevre, 151 A.D.2d 880, 882).
Mahoney, P.J., Casey, Weiss and Crew III, JJ., concur. Adjudged that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of creating a disturbance; petition granted to that extent and matter remitted to the Commissioner of Correctional Services for further proceedings not inconsistent with this court's decision; and, as so modified, confirmed.