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