Opinion
531027
09-24-2020
In the Matter of Juan ABREU, Petitioner, v. Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Juan Abreu, Long Island City, petitioner pro se. Letitia James, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Juan Abreu, Long Island City, petitioner pro se.
Letitia James, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: Lynch, J.P., Clark, Devine, Aarons and Pritzker, JJ.
MEMORANDUM AND JUDGMENT
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 a prison disciplinary rule.
Petitioner was charged in a misbehavior report with participating in a demonstration. According to the misbehavior report, 42 inmates, including petitioner, were assembled in a day room for a substance abuse treatment session. When the program aides and the offender rehabilitation coordinator attempted to commence the meeting, all the inmates refused to participate. Thereafter, one of the inmates, in a loud voice, told a program aide that the inmates would not participate until a fellow inmate was returned to the dorm, to which petitioner allegedly was heard agreeing with that statement and getting verbally abusive toward the program aide. Following a tier III disciplinary hearing, petitioner was found guilty of the charge. Other than a modification of the penalty imposed, the determination was affirmed upon administrative appeal. Petitioner then commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, related documentation, testimony from those involved in the incident and petitioner's admissions at the hearing provide substantial evidence to support the determination of guilt (see Matter of Barnes v. Lee, 153 A.D.3d 1543, 1543, 60 N.Y.S.3d 708 [2017] ; Matter of Basbus v. Prack, 112 A.D.3d 1088, 1089, 976 N.Y.S.2d 336 [2013] ; Matter of Perea v. Fischer, 107 A.D.3d 1253, 1253, 967 N.Y.S.2d 511 [2013] ). Regardless of whether petitioner became verbally abusive, the evidence establishes his role in the incident in that he, along with the other inmates, remained silent and would not participate in the meeting (see Matter of Barnes v. Lee, 153 A.D.3d at 1543, 60 N.Y.S.3d 708 ). Petitioner's exculpatory explanation for his silence, as well as any inconsistencies in the evidence, presented a credibility issue for the Hearing Officer to resolve (see Matter of Bekka v. Annucci, 168 A.D.3d 1334, 1335, 93 N.Y.S.3d 450 [2019] ; Matter of Campos v. Prack, 143 A.D.3d 1020, 1021, 38 N.Y.S.3d 448 [2016] ). Petitioner's remaining contentions are unpreserved for our review as they were not raised at the hearing or upon administrative review (see Matter of Bonnemere v. Annucci, 153 A.D.3d 983, 984, 56 N.Y.S.3d 909 [2017] ).
Lynch, J.P., Clark, Devine, Aarons and Pritzker, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.