IN THE MATTER OF FERRAR v. SELSKY

Petitioner was found guilty of violating the prison disciplinary rules prohibiting participation in a demonstration and refusing to obey a direct order based upon charges that he had refused a correction officer's order to report to work in the facility's mess hall. Substantial evidence of petitioner's guilt was presented in the form of the misbehavior report and the testimony of the correction officer who witnessed the charged misconduct (see Matter of Smith v. Goord, 307 A.D.2d 564; Matter of Harris v. Goord, 284 A.D.2d 841). Petitioner's explanations for refusing to report for work (i.e., he was not scheduled to work that day and he was suffering from a physical malady) are unavailing, as inmates are not free to choose among the direct orders with which they will comply (see Matter of Cepeda v. Goord, 305 A.D.2d 914, lv denied 100 N.Y.2d 511; Matter of Leake v. Goord, 289 A.D.2d 752, appeal dismissed 98 N.Y.2d 646). Petitioner's further contention that he considered the officer's statement to have been more in the nature of a request, rather than a direct order, raised an issue of credibility for resolution by the Hearing Officer (see Matter of Harris v. Goord, supra).

Finally, we reject petitioner's contention that he was denied the right to present documentary evidence in the form of a videotape. It was explained to petitioner that due to a mechanical failure, no videotape of the incident existed; hence, the failure to provide a nonexistant tape cannot be considered a violation of petitioner's rights (see Matter of Cornwall v. Goord, 287 A.D.2d 911, 912; Matter of Carini v. Goord, 270 A.D.2d 663, 664). The remaining issues raised herein have been examined and found to be without merit.

Cardona, P.J., Mercure, Carpinello, Rose and Lahtinen, JJ., concur.

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