Opinion
June 9, 1995
Appeal from the Supreme Court, Wyoming County, Dadd, J.
Present — Denman, P.J., Green, Fallon, Doerr and Balio, JJ.
Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly granted the petition and annulled the determination finding petitioner guilty of refusing to obey a direct order (see, 7 NYCRR 270.2 [B] [7] [i]). At petitioner's Tier III hearing, the Hearing Officer erred in refusing to receive or consider evidence that petitioner acted out of genuine concern for his safety (see, Matter of De Mauro v. LeFevre, 91 A.D.2d 1156). It is well established that "evidence of justification or mitigating circumstances is relevant in a prison disciplinary proceeding" (Matter of De Mauro v. LeFevre, supra, at 1157; see, Matter of Coleman v. Coombe, 65 N.Y.2d 777, 780; Matter of Wilson v. Coughlin, 186 A.D.2d 1090; Matter of Bole v Coughlin, 132 A.D.2d 70, 73).
We reject respondent's contention that petitioner's challenge to the determination is not preserved for our review.