Decided and Entered: November 26, 2003 93384 In the Matter of HOWARD FREIRE, Petitioner, v MEMORANDUM AND JUDGMENT GLENN S. GOORD, as Commissioner of Correctional Services, et al., Respondents. ________________________________ Calendar Date: October 29, 2003 Before: Cardona, P.J., Crew III, Peters, Mugglin and Kane, JJ. __________ Howard Freire, Ogdensburg, petitioner pro se. Eliot Spitzer, Attorney General, Albany (Peter H. Schiff of counsel), for respondents. __________ 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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules. Petitioner was found guilty of violating the prison disciplinary rules prohibiting inmates from participating in demonstrations and refusing to obey direct orders. The charges arose out of an organized inmate demonstration that took place in June 2002 at Five Points Correctional Facility in Seneca County, which included a work stoppage on the part of over 50 inmate food-service workers. The inmates had assembled in the facility’s mess hall where they ignored orders, issued by a correction lieutenant, either to perform their usual work assignments or return to their cells. Fifty-two of the 55 inmates present returned to their cells, following which the facility was locked down. Substantial evidence was presented at petitioner’s disciplinary hearing supporting the determination of his guilt. It included the misbehavior report and the testimony given by four correction officers who witnessed the charged acts of misconduct and the correction lieutenant who issued the direct orders to the inmates (see Matter of Biggs v Goord, 308 AD2d 619 [2003]; Matter of Evans v Rivera, 252 AD2d 706 [1998]). Additional evidence was provided by a surveillance videotape which showed petitioner as one of the group of inmates present in the mess hall who refused the orders. Petitioner testified that although he was present and left with the other 51 inmates, he did not participate in the work stoppage, having been completely ignorant that it was taking place. He further testified that his refusal to obey the direct orders occurred because he had been unable to hear them. These assertions raised issues of credibility that the Hearing Officer was free to resolve against petitioner, based upon substantial evidence to the contrary in the record (see Matter of Harris v Goord, 284 AD2d 841 [2001]; Matter of Mendez v Great Meadow Correctional Facility, 246 AD2d 702 [1998]). The remaining contentions raised by petitioner have been examined and are found to be without merit. Cardona, P.J., Crew III, Peters, Mugglin and Kane, JJ., concur. ADJUDGED that the determination is confirmed, without costs, and petition dismissed. ENTER: Michael J. Novack Clerk of the Court
