In the Matter of ANDERSON v. RICKS

Decided and Entered: June 19, 2003 92682 ________________________________ In the Matter of JOSEPH ANDERSON, Petitioner, THOMAS L. RICKS, as Superintendent of Upstate Correctional Facility, Respondent. ________________________________ Calendar Date: May 14, 2003 Before: Cardona, P.J., Mercure, Spain, Mugglin and Kane, JJ. __________ Joseph Anderson, Malone, petitioner pro se. Eliot Spitzer, Attorney General, Albany (Wayne Benjamin of counsel), for respondent. __________ Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Franklin County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules. Following a tier II disciplinary hearing, petitioner was found guilty of violating the prison disciplinary rules prohibiting inmates from creating a disturbance, interfering with a facility employee and harassment. As related in the misbehavior report, the reporting correction officer was attempting to comply with petitioner’s request to locate legal materials that, according to petitioner, could be found in his personal property bags. The officer was unable to find any legal materials and refused petitioner’s request to give him other items from the bags that did not constitute legal materials. Petitioner became agitated and subjected the officer to a lengthy barrage of profane insults that was readily audible to inmates in the neighboring cells. Substantial evidence of petitioner’s guilt of the charged misconduct was presented in the form of the misbehavior report and the testimony given by the reporting officer and a second officer who witnessed the incident in question (see Matter of Law v Goord, 301 AD2d 703, 704 [2003]; Matter of Duran v Senkowski, 289 AD2d 906, 907 [2001]). The remaining issues raised by petitioner, including his assertion of hearing officer bias, are either meritless or unpreserved for our review. Cardona, P.J., Mercure, Spain, Mugglin and Kane, JJ., concur. ADJUDGED that the determination is confirmed, without costs, and petition dismissed. ENTER: Michael J. Novack Clerk of the Court