Opinion
11-17-2016
In the Matter of Noel COOMBS Jr., Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Lebowitz Legal Services, PLLC, Glens Falls (Jack R. Lebowitz of counsel), for petitioner. Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of counsel), for respondent.
Lebowitz Legal Services, PLLC, Glens Falls (Jack R. Lebowitz of counsel), for petitioner.
Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of counsel), for respondent.
Before: McCARTHY, J.P., EGAN JR., LYNCH, CLARK and AARONS, JJ.
LYNCH, 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 respondent finding petitioner guilty of violating certain prison disciplinary rules.
While making his rounds late one evening in petitioner's housing unit, a correction officer attempted to quell the noise being made by a group of inmates and asked for their identification cards, at which point one of the inmates became unruly and refused to comply with the officer's directive. The officer moved the inmate into the day room and called for assistance from two other correction officers. The inmate refused to submit to a pat frisk and became combative, prompting the three officers to use force in attempting to restrain him and place him in mechanical restraints. Other inmates entered the day room during this time, one of whom was petitioner, who repeatedly grabbed one of the officers while he was attempting to restrain the inmate. Unable to effectively restrain the inmate, the officers released him, whereupon the remaining inmates, including petitioner, surrounded the officers, taunted them and refused several orders to return to their cubes. They also began shouting phrases, including “Let's kill them,” in an effort to incite the other inmates. Ultimately, these inmates returned to their cubes.
As a result of this incident, petitioner was charged in a misbehavior report with refusing a direct order, assaulting staff, creating a disturbance, interfering with an employee, engaging in violent conduct and engaging in a demonstration. He was found guilty of the charges following a tier III disciplinary hearing and the determination was later affirmed on administrative appeal. Petitioner subsequently commenced this CPLR article 78 proceeding challenging the determination.
Initially, inasmuch as petitioner pleaded guilty to creating a disturbance, he is precluded from challenging the sufficiency of the evidence supporting that part of the determination finding him guilty of this charge (see Matter of Lewis v. Fischer, 112 A.D.3d 1194, 1195, 976 N.Y.S.2d 629 [2013] ; Matter of Key v. Fischer, 72 A.D.3d 1365, 1366, 901 N.Y.S.2d 722 [2010] ). As for the remaining charges, the detailed misbehavior report, testimony of the correction officer who prepared it, supporting documentation and confidential information considered by the Hearing Officer in camera provide substantial evidence supporting the determination finding petitioner guilty of these charges (see Matter of Richardson v. Annucci, 133 A.D.3d 966, 967, 18 N.Y.S.3d 569 [2015] ; Matter of Ballou v. New York State Dept. of Correctional Servs., 80 A.D.3d 1058, 1058–1059, 915 N.Y.S.2d 410 [2011] ). Although petitioner initially requested eight inmates to testify at the hearing, he later abandoned this request and asked for only four, thereby waiving any claim that he was improperly denied witnesses (see Matter of Cornwall v. Fischer, 74 A.D.3d 1507, 1509, 904 N.Y.S.2d 520 [2010] ; Matter of Brown v. Barkley, 67 A.D.3d 1147, 1148, 887 N.Y.S.2d 871 [2009], lv. denied 14 N.Y.3d 702, 2010 WL 520588 [2010] ). Notably, two of the remaining four inmates who he requested testified at the hearing while two refused. Given petitioner's failure to object at the hearing to the legitimacy of the inmates' refusals, his claim that the Hearing Officer did not conduct a further inquiry into the reasons for their refusals is not preserved for our review (see Matter of Gomez v. Cunningham, 137 A.D.3d 1432, 1433, 28 N.Y.S.3d 136 [2016] ; Matter of Rafi v. Venettozzi, 120 A.D.3d 1481, 1482, 991 N.Y.S.2d 919 [2014] ). In view of the foregoing, we find no reason to disturb the determination of guilt.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
McCARTHY, J.P., EGAN JR., CLARK and AARONS, JJ., concur.