Opinion
2012-12-13
In the Matter of Jessie J. BARNES, Petitioner, v. Albert PRACK, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Jessie J. Barnes, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marlene O. Tuczinski of counsel), for respondent.
Jessie J. Barnes, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marlene O. Tuczinski of counsel), for respondent.
Before: ROSE, J.P., SPAIN, MALONE JR., STEIN and EGAN JR., JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review two determinations of the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.
After lunch was served to petitioner at his cell, he dumped the food down the front of his cell door and threw food trays on the floor. He then shouted obscenities at the officers on the gallery, used threatening language and flooded his cell until officers turned off the water. As a result, he was charged in a misbehavior report with engaging in violent conduct, creating a disturbance, committing an unhygienic act, refusing a direct order, making threats, wasting food and violating mess hall serving procedures. Following a tier III disciplinary hearing, he was found guilty of all of the charges, and the determination was affirmed on administrative appeal.
Shortly after the above incident, petitioner was observed repeatedly flushing the toilet in his cell until it flooded and again using profane and threatening language toward correction officers who were nearby. He was charged in a second misbehavior report with engaging in harassment, making threats, flooding his cell and committing an unhygienic act. Following a tier III disciplinary hearing, he was found guilty of these charges as well and this determination was also upheld on administrative appeal. Petitioner commenced this CPLR article 78 proceeding challenging both disciplinary determinations.
Insofar as the petition arguably raises a question of substantial evidence, the proceeding was properly transferred to this Court, but petitioner has abandoned that issue by not raising it in his brief ( see Matter of Alvarez v. Fischer, 94 A.D.3d 1404, 1405, 942 N.Y.S.2d 711 [2012],lv. denied96 A.D.3d 1703, 2012 WL 2509920 [2012];Matter of McDonald v. Fischer, 93 A.D.3d 969, 969 n., 939 N.Y.S.2d 727 [2012] ).
With regard to the first disciplinary determination, petitioner contends that he was improperly denied the right to present evidence of grievances he filed against the officer who wrote the misbehavior report, since the report was allegedly written in retaliation for filing the grievances. We find no error in the Hearing Officer's denial of such evidence, however, as it was redundant to the testimony establishing that petitioner had, in fact, filed grievances against the officer ( see Matter of Gomez v. Fischer, 74 A.D.3d 1399, 1400, 902 N.Y.S.2d 212 [2010],lv. dismissed15 N.Y.3d 858, 909 N.Y.S.2d 688, 936 N.E.2d 454 [2010];Matter of Williams v. Goord, 31 A.D.3d 1086, 1087, 819 N.Y.S.2d 195 [2006] ). Moreover, whether the author of the misbehavior report acted in retaliation presented a credibility issue for the Hearing Officer to resolve ( see Matter of White v. Fischer, 95 A.D.3d 1582, 1583, 943 N.Y.S.2d 924 [2012];Matter of Lopez v. Fischer, 91 A.D.3d 1223, 1224, 937 N.Y.S.2d 451 [2012] ). Although petitioner further contends that this Hearing Officer was biased, there is nothing to indicate that this was so or that bias was the basis for the determination ( see Matter of Toste v. Fischer, 95 A.D.3d 1511, 1512, 943 N.Y.S.2d 693 [2012];Matter of Hamilton v. Prack, 95 A.D.3d 1512, 1513, 943 N.Y.S.2d 811 [2012] ).
With regard to the second disciplinary determination, petitioner asserts that the Hearing Officer improperly removed him from the hearing. We find this claim to be unpersuasive. The record reveals that petitioner refused to enter a plea of either guilty or not guilty to the charges despite the Hearing Officer's repeated requests that he do so. Notwithstanding the Hearing Officer's efforts, petitioner persisted in objecting to the hearing and became obstructive. He was removed as a result, the Hearing Officer entered a not guilty plea on his behalf and conducted the hearing in his absence. Under the circumstances, the Hearing Officer took the appropriate action ( see Matter of Bunting v. Fischer, 85 A.D.3d 1473, 1474, 926 N.Y.S.2d 206 [2011],lv. denied17 N.Y.3d 712, 2011 WL 4916599 [2011];Matter of Odom v. Fischer, 65 A.D.3d 1425, 1426, 887 N.Y.S.2d 274 [2009];see also Matter of Beyah v. Leonardo, 182 A.D.2d 868, 581 N.Y.S.2d 896 [1992] ). Petitioner's remaining arguments, to the extent they are properly before us, have been considered and found to be unavailing.
ADJUDGED that the determinations are confirmed, without costs, and petition dismissed.