Opinion
1360 TP 17–00887
12-22-2017
In the Matter of Bashan RUDOLPH, Petitioner, v. Anthony ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent.
WYOMING COUNTY–ATTICA LEGAL AID BUREAU, WARSAW (ADAM W. KOCH OF COUNSEL), FOR PETITIONER. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (VICTOR PALADINO OF COUNSEL), FOR RESPONDENT.
WYOMING COUNTY–ATTICA LEGAL AID BUREAU, WARSAW (ADAM W. KOCH OF COUNSEL), FOR PETITIONER.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (VICTOR PALADINO OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, DEJOSEPH, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:
Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a tier III disciplinary hearing, that he violated inmate rules 106.10 ( 7 NYCRR 270.2 [B][7][i] [refusal to obey direct order] ) and 113.10 ( 7 NYCRR 270.2 [B][14][i] [weapon possession] ). Contrary to petitioner's contention, the determination is supported by substantial evidence, including the misbehavior report and the testimony of the correction officer who wrote it (see Matter of Medina v. Fischer, 137 A.D.3d 1584, 1585, 27 N.Y.S.3d 752 [4th Dept. 2016] ; Matter of Spears v. Fischer, 103 A.D.3d 1135, 1135–1136, 958 N.Y.S.2d 828 [4th Dept. 2013] ; see generally People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139–140, 495 N.Y.S.2d 332, 485 N.E.2d 997 [1985] ), notwithstanding that the videotape of the incident is inconclusive in certain respects (see generally Matter of Hutchinson v. Annucci, 149 A.D.3d 1443, 1443, 52 N.Y.S.3d 734 [3d Dept. 2017] ). The testimony of petitioner and the other inmates who testified at the hearing merely raised credibility issues that the Hearing Officer was entitled to resolve against petitioner (see Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 [1990] ; Matter of Heath v. Walker, 255 A.D.2d 1006, 1006, 681 N.Y.S.2d 708 [4th Dept. 1998] ), as did the alleged inconsistencies in the testimony of the correction officer who witnessed the incident (see Matter of Headley v. Annucci, 150 A.D.3d 1513, 1514, 54 N.Y.S.3d 459 [3d Dept. 2017] ; see also Matter of Griffin v. Goord, 266 A.D.2d 830, 830, 698 N.Y.S.2d 365 [4th Dept. 1999] ).
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.