Matter of Richard Miller v Department of Corrections and Community Supervision
Attorneys and Parties
Brief Summary
Prison disciplinary proceeding challenging findings for stalking and harassing an employee under Department of Corrections and Community Supervision (DOCCS) rules in an Article 78 review.
The Superintendent’s tier II determination finding petitioner guilty of harassing an employee and stalking (and not guilty of refusing a direct order) was affirmed on administrative appeal; the CPLR article 78 proceeding was transferred to the Appellate Division.
The finding of guilt for stalking was annulled and ordered expunged; the harassment finding was confirmed.
The Attorney General conceded that the stalking finding lacked substantial evidence; the harassment finding was supported by the misbehavior report and testimony, and 7 NYCRR 270.2 (B)(8)(ii) [prohibits harassing an employee verbally or in writing, including insolent/abusive/obscene language or gestures, or personal messages to an employee] provided adequate notice that petitioner’s conduct (kissing gesture and “What’s up with me and you?”) was prohibited. Credibility issues were for the Hearing Officer.
Background
Petitioner, an incarcerated individual, was charged with stalking, harassing an employee, and refusing a direct order after a correction officer reported that petitioner made a kissing gesture toward her and asked, “What’s up with me and you?” A tier II hearing found petitioner guilty of harassment and stalking, but not guilty of refusing a direct order. The administrative appeal affirmed. Petitioner commenced a CPLR article 78 proceeding [special proceeding to challenge administrative actions], which Supreme Court transferred to the Appellate Division.
Lower Court Decision
No merits determination by Supreme Court; the administrative determination (harassment and stalking sustained; refusal-of-order charge dismissed) was affirmed on administrative appeal before transfer.
Appellate Division Reversal
Modified: annulled the stalking charge for lack of substantial evidence and directed expungement of all references to that charge; otherwise confirmed the harassment finding. Because the penalty had been served and no loss of good time was imposed, no remittal for penalty redetermination was necessary.
Legal Significance
Clarifies that 7 NYCRR 270.2 (B)(8)(ii) [prohibits harassing an employee verbally or in writing, including insolent/abusive/obscene language or gestures, or personal messages to an employee] provides adequate notice and encompasses gestures and personal solicitations directed at staff. Reinforces substantial evidence standards and deference to Hearing Officer credibility determinations. Confirms that when a penalty has been served and no good time is lost, annulment of one charge does not require remittal for penalty recalculation.
In prison discipline under CPLR article 78, stalking cannot stand without substantial evidence, but harassment of staff can be sustained where gestures and personal remarks toward an officer fall within 7 NYCRR 270.2 (B)(8)(ii); annulled charges are expunged, and no remittal is needed if the penalty is fully served with no good-time loss.