                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 11, 2014                   517823
________________________________

In the Matter of STUART DIZAK,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
ALBERT PRACK, as Director of
   Special Housing and Inmate
   Disciplinary Programs,
                    Respondent.
________________________________


Calendar Date:   August 4, 2014

Before:   Peters, P.J., Stein, McCarthy, Lynch and Devine, JJ.

                             __________


     Stuart Dizak, Dannemora, petitioner pro se.

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

                             __________


      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
certain prison disciplinary rules.

      As a group of inmates was lining up to proceed to the mess
hall, a correction officer noted that petitioner was walking in
the opposite direction and attempting to conceal items under his
coat. The officer discovered that the items were an envelope and
notepad, and he ordered petitioner to turn them over for
inspection. Petitioner refused and thereafter attempted to flee,
requiring that he be restrained. As a result, petitioner was
charged in a misbehavior report with engaging in violent conduct,
refusing a direct order, refusing to comply with frisk procedures
                              -2-                517823

and employee interference. He was found guilty as charged
following a tier III disciplinary hearing. The determination was
affirmed upon administrative appeal, and this CPLR article 78
proceeding ensued.

      Upon review of the misbehavior report and supporting
documentation, as well as the testimony of the correction officer
who authored the report and petitioner himself, we find
substantial evidence in the record to support that part of the
determination finding petitioner guilty of refusing a direct
order, refusing to comply with frisk procedures and employee
interference (see Matter of Fragosa v Moore, 93 AD3d 979, 979-980
[2012]; Matter of Irwin v Fischer, 85 AD3d 1336, 1337 [2011], lv
denied 17 NY3d 712 [2011]). The charge of engaging in violent
conduct, however, is not similarly supported. Although the
misbehavior report and documentary evidence indicate that
petitioner was resistant in some way when he was forced to the
ground and restrained, the record is silent as to the nature of
that noncompliance and the officer testified to nothing beyond
the fact that he grabbed petitioner's arm and pushed him to the
ground. Thus, the finding that petitioner engaged in violent
conduct cannot be sustained, and this matter must be remitted for
a redetermination of the penalty given that the penalty included
a recommended loss of good time (see Matter of Reynolds v Selsky,
270 AD2d 743, 744 [2000]; cf. Matter of Hodge v Selsky, 53 AD3d
953, 954 [2008]).

      Contrary to petitioner's further argument, the record
demonstrates that he was not deprived of his right to call
relevant witnesses (see Matter of Moreno v Fischer, 100 AD3d
1167, 1168 [2012]). Petitioner's contention that the hearing was
not conducted in a timely fashion is unpreserved due to his
failure to raise that objection at the hearing itself (see Matter
of Creamer v Venettozzi, 117 AD3d 1254, 1255 [2014]). His
remaining contentions, to the extent they are properly before us,
have been examined and rejected.

      Peters, P.J., Stein, McCarthy, Lynch and Devine, JJ.,
concur.
                              -3-                  517823

      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of
engaging in violent conduct; petition granted to that extent, the
Commissioner of Corrections and Community Supervision is directed
to expunge all references to this charge from petitioner's
institutional record, and matter remitted to the Commissioner for
an administrative redetermination of the penalty imposed upon the
remaining violations; and, as so modified, confirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
