Opinion
520617.
02-11-2016
In the Matter of the Claim of Ulysses BOYD, Petitioner, v. Albert J. PRACK, as Director of Special Housing and Inmate Disciplinary Programs, et al., Respondents.
Ulysses Boyd, Stormville, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondents.
Ulysses Boyd, Stormville, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondents.
Opinion
GARRY, J.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.
During a search of petitioner's cell, a correction officer found a cardboard box that had been fashioned into a cooler and an oil-soaked tissue that had been placed on the bulb of a lamp. While the officer was removing these items from the cell, petitioner suddenly lunged toward the officer but was subdued when another officer arrived to provide assistance. As a result, petitioner was charged with attempting to assault staff, interfering with an employee, possessing an altered item, possessing flammable materials, engaging in violent conduct and creating a disturbance. Following a tier III disciplinary hearing, petitioner was found guilty of the charges and the determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, documentary evidence and the hearing testimony provide substantial evidence supporting the determination of guilt (see Matter of Wilson v. Annucci, 129 A.D.3d 1422, 1422, 10 N.Y.S.3d 908 2015; Matter of Douglas v. Fischer, 126 A.D.3d 1244, 1245, 3 N.Y.S.3d 654 2015, lv. denied 26 N.Y.3d 904, 2015 WL 5254842 2015 ). The contrary testimony of petitioner and his inmate witnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of Adams v. Fischer, 116 A.D.3d 1269, 1270, 983 N.Y.S.2d 746 2014; Matter of Espinal v. Fischer, 114 A.D.3d 978, 979, 979 N.Y.S.2d 864 2014 ). Moreover, petitioner was not improperly denied the right to question the sergeant who ordered the search or the correction officer who conducted it about events that occurred prior to the search inasmuch as such testimony was irrelevant to the charges against petitioner (see Matter of Williams v. Goord, 27 A.D.3d 808, 809–810, 809 N.Y.S.2d 688 2006; Matter of Flenon v. Goord, 24 A.D.3d 912, 913, 806 N.Y.S.2d 728 2005, lv. denied 6 N.Y.3d 710, 814 N.Y.S.2d 599, 847 N.E.2d 1172 2006 ). Furthermore, although petitioner claims that portions of the hearing were not electronically recorded, the hearing transcript does not substantiate this claim nor disclose the existence of gaps in the testimony that preclude meaningful review (see Matter of Sanders v. Annucci, 128 A.D.3d 1156, 1157, 7 N.Y.S.3d 733 2015, appeal dismissed 26 N.Y.3d 964 2015; Matter of Bookman v. Fischer, 107 A.D.3d 1260, 1260, 967 N.Y.S.2d 242 2013 ). We have considered petitioner's remaining contentions and find them to be unavailing.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
PETERS, P.J., ROSE and LYNCH, JJ., concur.