Opinion
93 TP 18–01387
03-15-2019
In the Matter of Jason BAXTER, Petitioner, v. Anthony ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent.
WYOMING COUNTY–ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER. BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF COUNSEL), FOR RESPONDENT.
WYOMING COUNTY–ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER.
BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a tier III disciplinary hearing, that he violated various inmate rules, including inmate rule 100.10 ( 7 NYCRR 270.2 [B][1][i] [assault on an inmate] ). Contrary to petitioner's contention, the misbehavior report and a videotape of the incident constitute substantial evidence to support the charges (see Matter of Rudolph v. Annucci , 156 A.D.3d 1415, 1415, 65 N.Y.S.3d 896 [4th Dept. 2017] ). Petitioner's denial of the reported misbehavior raised, at most, an issue of credibility for resolution by the Hearing Officer (see Matter of Foster v. Coughlin , 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 [1990] ). Contrary to petitioner's further contention, the charge of assault on an inmate is supported by substantial evidence despite the lack of evidence that another inmate was injured because that inmate rule is violated by, inter alia, an "attempt to inflict bodily harm upon any other inmate" ( 7 NYCRR 270.2 [B][1][i]; see Matter of Price v. Goord , 308 A.D.2d 625, 626, 764 N.Y.S.2d 226 [3d Dept. 2003] ).
We reject petitioner's contention that he was denied effective employee assistance inasmuch as any alleged defect in the assistance was cured by the actions of the Hearing Officer in ensuring that petitioner received the documents to which he was entitled (see Matter of Gray v. Kirkpatrick , 59 A.D.3d 1092, 1092–1093, 873 N.Y.S.2d 816 [4th Dept. 2009] ).
Finally, we reject petitioner's contention that he was denied his right to call an inmate witness to testify on his behalf. The inmate originally agreed to testify, but subsequently refused to do so at the time of the hearing. In an interview with the inmate, the Hearing Officer attempted, but failed, to obtain an explanation about his refusal to testify. " ‘[W]hen the [H]earing [O]fficer conducts a personal interview but is unable to elicit a genuine reason from the refusing witness, the charged inmate's right to call witnesses will have been adequately protected’ " ( Matter of Yarborough v. Annucci , 164 A.D.3d 1667, 1668, 84 N.Y.S.3d 656 [4th Dept. 2018] ).