Daum v. Sipple

199 A.D.3d 1156

154 N.Y.S.3d 284 (Mem)

In the Matter of Terry DAUM, Petitioner,

v.Gary SIPPLE, as Deputy Superintendent of Security at Sullivan Correctional Facility, Respondent.

533355

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: October 8, 2021

Decided and Entered: November 10, 2021

Terry Daum, Fallsburg, petitioner pro se.

Letitia James, Attorney General, Albany (Owen Demuth of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Aarons, Pritzker and Reynolds Fitzgerald, JJ.

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 the Superintendent of Sullivan Correctional Facility finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with refusing a direct order, harassing an employee, interfering with an employee, making threats and creating a disturbance. According to the report, petitioner was outside his cell when he was observed displaying his middle finger at a female correction officer. The correction officer who observed petitioner's conduct ordered petitioner to lock in his cell. Petitioner became irate at that point, refusing to lock in and began verbally abusing the female correction officer. After he was again ordered to lock in, he went to the doorway of his cell but positioned himself so as to prevent the cell door from closing. Once petitioner was inside his cell, he continued yelling and verbally abusing the correction officer. Following a tier II hearing, petitioner was found not guilty of making threats but guilty of the remaining charges, and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report and hearing testimony provide substantial evidence supporting the determination of guilt (see Matter of Dove v. Annucci, 190 A.D.3d 1181, 1181–1182, 136 N.Y.S.3d 809 [2021], lv denied 37 N.Y.3d 909, 2021 WL 4188675 [2021] ; Matter of Steele v. Annucci, 178 A.D.3d 1226, 1226–1227, 111 N.Y.S.3d 917 [2019] ). The contrary testimony of petitioner and his witnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of Snyder v. Annucci, 188 A.D.3d 1346, 1347, 136 N.Y.S.3d 170 [2020] ; Matter of Beltre v. Rodriguez, 185 A.D.3d 1370, 1370, 126 N.Y.S.3d 423 [2020] ). Contrary to petitioner's contention, the testimony of the sergeant who supervised the correction officers involved was not inconsistent with the guilty determinations. The sergeant admittedly did not witness the incident and,...