Matter of Johnson v Goord

Decided and Entered: July 5, 2007 501862 ___________________________ In the Matter of KEVIN JOHNSON, Petitioner, v GLENN S. GOORD, as Commissioner of Correctional Services, Respondent. ______________________ Calendar Date: May 16, 2007 Before: Cardona, P.J., Mercure, Peters, Spain and Carpinello, JJ. _____ Kevin Johnson, Malone, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Patrick Barnett-Mulligan of counsel), for respondent. _____ Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule. Petitioner became agitated after a correction officer informed him that he was getting a roommate. He then refused the officer’s directives, used profanity toward the officer and threatened to kill the officer when he was released from prison. As a result, the officer prepared a misbehavior report charging him with violating inmate movement regulations, refusing double-bunking, refusing a direct order and making threats. At the conclusion of a tier III disciplinary hearing, petitioner was found guilty of making threats, but the other charges were dismissed. After the determination was affirmed on administrative appeal, petitioner commenced this CPLR article 78 proceeding. The detailed misbehavior report provides substantial evidence supporting the determination finding petitioner guilty of making threats (see Matter of Russell v Selsky, 22 AD3d 998, 999 [2005], lv dismissed 7 NY3d 750 [2006]; Matter of Goncalves v Donnelly, 9 AD3d 721, 721 [2004]). Petitioner’s claim that he had prior difficulties with the officer who wrote the report and that it was written in retaliation presented a credibility issue for the Hearing Officer to resolve (see Matter of Applewhite v Goord, 22 AD3d 985, 986 [2005]; Matter of Russell v Selsky, supra at 999). Therefore, we find no reason to disturb respondent’s determination. Petitioner’s remaining claims are lacking in merit and/or unpreserved for appellate review. Cardona, P.J., Mercure, Peters, Spain and Carpinello, JJ., concur. ADJUDGED that the determination is confirmed, without costs, and petition dismissed.