Matter of McEachin v Napoli

Matter of McEachin v Napoli 2008 NY Slip Op 09319 [56 AD3d 1089] November 26, 2008 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 7, 2009

In the Matter of Guy McEachin, Petitioner, v David Napoli, as Superintendent of Southport Correctional Facility, et al., Respondents.

—[*1] Guy McEachin, Attica, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet of counsel), for respondents.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of respondent Superintendent of Southport Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.

After he refused a correction officer's order to stop banging on his cell door, petitioner was charged in a misbehavior report with refusing a direct order and creating a disturbance. He was found guilty of the charges following a tier II disciplinary hearing and the determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. Petitioner confines his challenge to the sufficiency of the evidence supporting the determination of guilt. Upon reviewing the record, we find that the misbehavior report, together with the videotape of the incident, provide the requisite substantial evidence to support the determination (see Matter of Barclay v Goord, 23 AD3d 862, 862 [2005], lv denied 6 NY3d 710 [2006]; Matter of Brown v Goord, 9 AD3d 646, 647 [2004], lv denied 3 NY3d 612 [2004]). Therefore, we find no reason to disturb it.

Peters, J.P., Rose, Lahtinen, Kavanagh and Stein, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.