State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: November 6, 2014 518711
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In the Matter of RAMON PEQUERO,
Petitioner,
v MEMORANDUM AND JUDGMENT
BRIAN FISCHER, as Commissioner
of Corrections and Community
Supervision, et al.,
Respondents.
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Calendar Date: September 16, 2014
Before: Lahtinen, J.P., Stein, Garry, Lynch and Clark, JJ.
__________
Ramon Pequero, Wallkill, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff of counsel), for respondents.
__________
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 respondent Commissioner of Corrections
and Community Supervision which found petitioner guilty of
violating a prison disciplinary rule.
After a correction officer gave a five-minute warning to a
religious group that their one-hour service was to be completed,
the group's inmate facilitator approached the officer and claimed
that their time was being cut short and made certain remarks to
the group that the officers were "cutting our time" and "we need
to take care of this sh*t." In response, all of the inmates,
including petitioner, stood up and joined in the demonstration,
clapping and talking loudly. Petitioner was charged in a
misbehavior report with creating a disturbance, interference with
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an employee and leading inmates in actions detrimental to the
facility. Following a tier III disciplinary hearing, petitioner
was found guilty of creating a disturbance and not guilty of the
other charges, and a penalty was imposed, which was upheld on
administrative review. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report and testimony of its
author, the correction officer who gave the warning and observed
the group's response, constituted substantial evidence to support
the determination (see Matter of Wilson v Artus, 71 AD3d 1294,
1294-1295 [2010]). The officer's testimony established that
petitioner was present in the group, as petitioner conceded, and
that, after the facilitator's remarks to the group, all of the
inmates, including petitioner, stood up and started saying things
loudly and clapping, disturbing the order of the program area.
The fact that the officer did not specifically see petitioner
talking or recall what he said did not undermine the finding that
he participated in creating a disturbance. Contrary to
petitioner's claim, the misbehavior report was sufficiently
specific and indicated the role he played in the disturbance (see
7 NYCRR 251-3.1 [c] [1-4]), and the charge of creating a
disturbance did not require that the particular words spoken by
petitioner be identified (see 7 NYCRR 104.13). The remaining
contentions are either unpreserved or without merit.
Lahtinen, J.P., Stein, Garry, Lynch and Clark, JJ., concur.
ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.
ENTER:
Robert D. Mayberger
Clerk of the Court