Matter of Bailey v Prack

Matter of Bailey v Prack 2015 NY Slip Op 00937 Decided on February 5, 2015 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: February 5, 2015
519031

[*1]In the Matter of RALIK BAILEY, Petitioner,

v

ALBERT PRACK, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

Calendar Date: December 2, 2014
Before: Lahtinen, J.P., McCarthy, Lynch and Devine, JJ.

Ralik Bailey, Malone, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

MEMORANDUM AND JUDGMENT

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 the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, an inmate, commenced this proceeding challenging a disciplinary determination finding him guilty of disobeying a direct order. The misbehavior report and testimony that petitioner "had words" with the correction officer when he was directed to remove his arm from around another inmate's neck provide substantial evidence to support the determination of guilt (see Matter of Harrington v Prack, 91 AD3d 1244, 1245 [2012]). It is well settled that petitioner, as a prison inmate, "was required to promptly obey the order even if he disagreed

with it" (Matter of Wells v O'Keefe, 286 AD2d 791, 791 [2001]; see Matter of Tarbell v Prack, 89 AD3d 1342, 1343 [2011]). To the extent that petitioner claims that the misbehavior report was fabricated, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Suero v Fischer, 95 AD3d 1509, 1509-1510 [2012]).

Lahtinen, J.P., McCarthy, Lynch and Devine, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.