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New York Appeals Court Upholds Prisoner's Disciplinary for 9-11 Comment

On June 17, 2004, a New York court of appeals upheld disciplinary action
taken against a state prisoner for a comment he allegedly made while
watching TV coverage of the 9-11 attacks.

Particio Linares, a New York state prisoner, was watching TV coverage of
the 9-11 attacks on 9-11-01 with a large group of rowdy, clapping prisoners
when a guard allegedly overheard him making a comment to another prisoner
that he saw a chance to take this place. He was charged with rioting and
violent conduct. A hearing officer found him guilty of rioting, but not
guilty of violent conduct. Following an unsuccessful administrative appeal,
Linares filed a pro se petition challenging the disciplinary conviction
pursuant to C.P.L.R. article 78.

The court found that the officer's disciplinary hearing testimony that he
overheard Linares make the comment was substantial evidence to support the
determination. It also held that the hearing officer was not biased for 1)
failing to secure a videotape of the incident because the tape did not
exist, or 2) failing to allow testimony of prisoner-witnesses because the
prisoners refused to testify, or 3) refusing to allow a lieutenant who was
not at work on 9-11-01 to testify, or 4) refusing Linares's request for a
sign language interpreter. Linares's contention that he could not have made
the comment because he did not speak English merely created a credibility
issue that the hearing officer resolved. Therefore, the disciplinary
determination was affirmed and the petition dismissed.

Even if Linares made the alleged comment, it's difficult to see how one
comment, not acted upon, could constitute rioting. Of course, anyone
clapping at the 9-11 attacks (or criticizing the invasion of Iraq or other
aspects of the government's handling of the terror wars for that matter)
can expect equally harsh treatment behind prison walls and in the halls of
justice. Freedom of speech, like the Geneva Convention, is considered a
quaint notion by government officials in the Bush II administration. See:
Linares v. Goord, 8 A.D.3d 839, 778 N.Y.S.2d 550 (N.Y.A.D. 3 Dept., 2004),
leave to appeal denied (2004).

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Related legal case

Linares v. Goord

Linares v. Goord, 778 N.Y.S.2d 550 ( 06/17/2004)


[2] 93768

[3] 778 N.Y.S.2d 550, 2004.NY

[4] June 17, 2004


[6] Patricio Linares, Dannemora, petitoner pro se.

[7] Eliot Spitzer, Attorney General, Albany (Patrick Barnett-Mulligan of counsel), for respondent.

[8] Before: Cardona, P.J., Crew III, Peters, Mugglin and Rose, JJ.

[9] The opinion of the court was delivered by: Mugglin, J.

[10] This opinion is uncorrected and subject to revision before publication in the Official Reports.


[12] Calendar Date: May 27, 2004

[13] Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Greene County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

[14] Petitioner, then an inmate at Coxsackie Correctional Facility in Greene County, was charged in an inmate misbehavior report with engaging in violent conduct and rioting. That report arose from an alleged incident on September 11, 2001, when a correction officer observed petitioner, who was watching television coverage of the terrorist attacks with a large group of inmates, begin laughing and clapping at the footage and told another inmate he saw their "chance to take this place." After a tier III disciplinary hearing, petitioner was found guilty of rioting based upon his comment to the other inmate, but was found not guilty of violent conduct. Following his administrative appeal, petitioner commenced this CPLR article 78 proceeding challenging the determination.

[15] We find that substantial evidence supports the determination based upon the misbehavior report and the reporting correction officer's testimony that he heard petitioner state to another inmate that petitioner saw a "chance to take this place" (cf. Matter of Lopez v Selsky, 233 AD2d 574, 575 [1996]). Petitioner's claim that he spoke no English and could not have made the comment created a credibility issue for the Hearing Officer to resolve (see Matter of Green v Ricks, 304 AD2d 1010, 1011-1012 [2003], lv denied 100 NY2d 509 [2003], cert denied US , 124 S Ct 1181 [2004]).

[16] Nor do we agree that the Hearing Officer was biased in failing to obtain certain evidence for petitioner. The record reveals that the Hearing Officer attempted to obtain the evidence requested by petitioner, including a videotape and the testimony of various inmate witnesses, but the videotape did not exist and the inmates refused to testify. We find no error either in the Hearing Officer's refusal to allow a lieutenant who was not working on the date of the incident to testify, or his failure to call a correction officer who would have given cumulative testimony (see Matter of Hidalgo v Senkowski, 283 AD2d 839, 840 [2001]).

[17] We have considered petitioner's remaining contentions, including that the Hearing Officer improperly denied his request for a sign language interpreter, and find them to be without merit.

[18] Cardona, P.J., Crew III, Peters and Rose, JJ., concur.

[19] ADJUDGED that the determination is confirmed, without costs, and petition dismissed.