Opinion
764 TP 23-00439
11-17-2023
In the Matter of Ernesto DELGADO, Petitioner, v. Anthony ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent.
ERNESTO DELGADO, PETITIONER PRO SE. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KATE H. NEPVEU OF COUNSEL), FOR RESPONDENT.
ERNESTO DELGADO, PETITIONER PRO SE.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KATE H. NEPVEU OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CURRAN, BANNISTER, OGDEN, AND DELCONTE, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the determination is unanimously modified on the law and the amended petition is granted in part by annulling that part of the determination finding that petitioner violated incarcerated individual rules 104.11 ( 7 NYCRR 270.2 [B] [5] [ii]), 104.13 ( 7 NYCRR 270.2 [B] [5] [iv]), and 107.10 ( 7 NYCRR 270.2 [B] [8] [i]) and as modified the determination is confirmed without costs and respondent is directed to expunge from petitioner's institutional record all references to the violation of those incarcerated individual rules.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a tier III disciplinary hearing, that he violated incarcerated individual rules 102.10 ( 7 NYCRR 270.2 [B] [3] [i] [threats]), 104.11 ( 7 NYCRR 270.2 [B] [5] [ii] [violent conduct]), 104.13 ( 7 NYCRR 270.2 [B] [5] [iv] [creating a disturbance]), 106.10 ( 7 NYCRR 270.2 [B] [7] [i] [direct order]) and 107.10 ( 7 NYCRR 270.2 [B] [8] [i] [interference with employee]). As respondent correctly concedes, the determination that petitioner violated rules 104.11, 104.13 and 107.10 is not supported by substantial evidence. We therefore modify the determination by granting the amended petition in part and annulling that part of the determination finding that petitioner violated those rules, and we direct respondent to expunge from petitioner's institutional record all references thereto (see generally Matter of Johnson v. Eckert , 197 A.D.3d 1011, 1011-1012, 150 N.Y.S.3d 671 [4th Dept. 2021] ; Matter of Washington v. Annucci , 150 A.D.3d 1700, 1700-1701, 53 N.Y.S.3d 451 [4th Dept. 2017] ). Contrary to petitioner's contention, however, the misbehavior report and hearing testimony constitute substantial evidence supporting the determination that he violated rules 102.10 and 106.10 (see generally Matter of Thomas v. Annucci , 193 A.D.3d 1356, 1357, 143 N.Y.S.3d 262 [4th Dept. 2021] ; Matter of Williams v. Annucci , 162 A.D.3d 1530, 1531, 78 N.Y.S.3d 838 [4th Dept. 2018] ). Any conflicting testimony from petitioner and the other incarcerated individual witnesses merely presented credibility issues for the Hearing Officer to resolve (see Matter of Foster v. Coughlin , 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 [1990] ).
We have reviewed petitioner's remaining contentions and conclude that none warrants annulment or further modification of the determination.