Matter of Connelly v Griffin

Matter of Matter of Connelly v Griffin 2012 NY Slip Op 08389 Decided on December 6, 2012 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: December 6, 2012
514514

[*1]In the Matter of DANIEL CONNELLY, Petitioner,

v

PATRICK GRIFFIN, as Superintendent of Sullivan Correctional Facility, Respondent.

Calendar Date: October 29, 2012
Before: Peters, P.J., Mercure, Malone Jr., Kavanagh and Stein, JJ.


Daniel Connelly, Fallsburg, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany
(Laura Etlinger 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 Sullivan County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, an inmate, made a verbally abusive and threatening statement to a civilian recreation worker after having a disagreement over the flag football schedule [FN1]. The following day, while this worker was performing his duties in the gym, he overheard petitioner announce to other inmates in a loud and boisterous manner, "I got 40 years to life[,] he's gonna [sic] find out I own this place . . . we're gonna [sic] take the jail back." The worker interpreted this statement to be directed at him and felt intimidated. The worker reported it to a sergeant and, as a result, petitioner was charged in a misbehavior report with harassment, making threats, engaging in violent conduct, creating a disturbance and interfering with an employee. He was found guilty of these charges following a tier II disciplinary hearing and the determination was affirmed on [*2]administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. At the disciplinary hearing, the recreation worker testified to the statements he overheard petitioner make in the gym and indicated that he thought such statements were directed at him and were threatening, particularly in view of his disagreement with petitioner the previous day. This testimony, together with the misbehavior report, provide substantial evidence supporting the determination of guilt (see Matter of Roncini v Goord, 18 AD3d 1086, 1087 [2005]; Matter of Jamison v Goord, 8 AD3d 860, 860 [2004]). The contrary testimony of petitioner and his inmate witnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of Kalwasinski v Fischer, 87 AD3d 1207, 1208 [2011]; Matter of Watson v New York State Dept. of Correctional Servs., 82 AD3d 1435, 1435-1436 [2011]). Moreover, we reject petitioner's claim that the disciplinary determination at issue is barred by the doctrine of res judicata. The prior disciplinary determination, which was the result of petitioner's guilty plea, arose from the abusive and threatening statement that petitioner made to the recreation worker the previous day and was totally separate from the incident in the gym (see Matter of Calcaterra v Fischer, 73 AD3d 1370, 1371 [2010]; Matter of Murdough v Goord, 37 AD3d 915, 916 [2007]). Consequently, it did not have any preclusive effect. We have considered petitioner's remaining contentions and find them to be unpersuasive.

Peters, P.J., Mercure, Malone Jr., Kavanagh and Stein, JJ., concur.

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

Footnote 1: Petitioner pleaded guilty to the disciplinary charges that were brought against him as a result of this incident.