¶1dissent in part in a memorandum by Milonas, J., as follows: Inspector General Tyrone Butler was supervisor of the unit (the Office of the Inspector General), responsible for the investigation of corruption, gross misconduct and mismanagement within the New York City Department of Correction. In June of 1984, he received certain complaints that members of the Department assigned to the Manhattan Criminal Court facility were making improper seniority assignments among correction officers assigned there. After learning that petitioner herein possessed information relevant to the investigation into these alleged irregularities, Inspector General Butler met with him in July of 1984 and requested that he submit as soon as possible a written report documenting the misconduct which he had observed.
¶2On August 1, 1984, petitioner was working a 12:00 a.m. to 8:00 a.m. shift at the Rikers Island Correctional Institution for Men when he was advised by Captain Patrick Tyranski that he would be required to remain on the job for the following shift as well. Petitioner explained that he was on the third day of a four-day tour of duty and that, in any event, he was *442obligated to go to the Office of the Inspector General to hand in a confidential report. Although Captain Tyranski directed petitioner to the roll call area, the captain telephoned the Inspector General’s Office and was told that the needs of the institution took precedence and that, therefore, it was not imperative for petitioner to present his report that day. Petitioner was informed that the Office of the Inspector General had been contacted, and he was still mandated to work the additional tour of duty. Petitioner then requested, and received, permission to make a telephone call, but instead of doing so, he signed himself out and proceeded to the Inspector General’s Office where he submitted his report.
¶3The following day, Deputy Warden Dennis Cowan, whose duties included the overseeing of discipline, ordered petitioner to come to his office. There, the deputy warden asked him why he had left the institution the previous day. Petitioner, who was visibly upset, replied that he had something to do. After he was reminded that he had been directed to report to the receiving room for duty and did not have the authority to leave, he stated that Deputy Warden Cowan was not aware of all of the circumstances. Cowan insisted that petitioner should not have disobeyed an order. Petitioner responded by declaring that he would walk out again today, a statement which he apparently repeated when the deputy warden demanded that he prepare a report concerning his actions. Petitioner did not speak in a raised voice, and he complied with the direction to submit a report.
¶4Petitioner was subsequently served with four charges and specifications alleging that he had (1) failed to report to his assigned place of duty, (2) failed to obey the lawful orders of Captain Tyranski and Deputy Warden Cowan by refusing to report to the receiving room and leaving the facility, (3) acted in a disrespectful and contemptuous manner toward Deputy Warden Cowan, and (4) rendered a false report concerning the transactions of August 1, 1984. An administrative hearing ensued, at the conclusion of which petitioner was found guilty of the first three charges, and the fourth charge was dismissed. The Hearing Officer’s recommendation that petitioner be suspended without pay for a period of 10 working days was accepted by respondent Commissioner of Correction. The instant CPLR article 78 proceeding was duly commenced alleging that the determination was not supported by substantial evidence and that the punishment imposed against petitioner was excessive. In that regard, I disagree in part with the majority and would grant the petition to the extent of annul*443ling the finding of guilt on the third charge, but would otherwise confirm the determination.
¶5The third count accuses petitioner of acting in a disrespectful and contemptuous manner toward his superior because he informed Deputy Warden Cowan that he would do the same thing again under similar circumstances. Yet, the fact remains that he made such a statement as a consequence of being called into the deputy warden’s office for a private conversation so that he could explain his failure to report for an additional tour of duty. In the course of that private conversation, petitioner asserted, in effect, that he did not believe that he had done anything wrong and would do the same thing again if confronted with an analogous situation. He did not speak disrespectfully to Cowan in the presence of other persons, did not refuse to carry out an order and was not behaving insubordinately. He was merely attempting to defend his behavior upon being requested to do so by the deputy warden. Moreover, Cowan admits that while petitioner was upset, he did not raise his voice or otherwise act in a contemptuous manner. Thus, pursuant to the third charge, petitioner was found guilty for conduct amounting to no more than the exercise of his right to free speech as protected by US Constitution 1st Amendment. In my opinion, there was no basis for the determination with respect to this count.