Opinion
09-15-2016
In the Matter of Jose BERMUDEZ, Petitioner, v. Thomas GRIFFIN, as Superintendent of Eastern Correctional Facility, Respondent.
Jose Bermudez, Elmira, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Jose Bermudez, Elmira, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
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 a female correction officer was releasing a group of inmates from the block for recreation, petitioner informed her that he was entitled to take a medical shower on the block. The officer checked the medical permits and discovered that petitioner's daily shower was to occur at a different location. When she so informed petitioner, he became argumentative in the presence of three porters who stopped their work to listen to the exchange. As a result of this incident, petitioner was charged in a misbehavior report with making a false statement, creating a disturbance, interfering with an employee and refusing a direct order. Following a tier II disciplinary hearing, he was found guilty of all of the charges except for refusing a direct order. After the determination was affirmed on administrative appeal, petitioner commenced this CPLR article 78 proceeding challenging it.
We confirm. The detailed misbehavior report and related documentation, together with the testimony of the correction officers who authored and endorsed the misbehavior report, provide substantial evidence supporting the determination of guilt (see Matter of Alsaifullah v. Fischer, 118 A.D.3d 1239, 1240, 987 N.Y.S.2d 717 [2014], lv. denied 24 N.Y.3d 906, 2014 WL 5368870 [2014] ; Matter of Cornelius v. Fischer, 98 A.D.3d 779, 780, 949 N.Y.S.2d 804 [2012] ). Petitioner's contrary version of events presented a credibility issue for the Hearing Officer to resolve (see Matter of Grant v. Rock, 122 A.D.3d 1225, 1226, 997 N.Y.S.2d 541 [2014] ; Matter of Vargas v. Fischer, 121 A.D.3d 1138, 1138, 992 N.Y.S.2d 907 [2014], lv. dismissed 25 N.Y.3d 1197, 16 N.Y.S.3d 55, 37 N.E.3d 114 [2015] ). In addition, there is no merit to petitioner's claim that he was improperly denied certain go-around slips, as the record reveals that they did not exist despite the Hearing Officer's diligent efforts to locate them (see Matter of Flores v. Fischer, 110 A.D.3d 1302, 1303, 973 N.Y.S.2d 485 [2013], lv. denied 22 N.Y.3d 861, 2014 WL 552669 [2014] ; see also Matter of Mendez v. Annucci, 126 A.D.3d 1216, 1217, 3 N.Y.S.3d 640 [2015] ). Furthermore, petitioner was not improperly removed from the hearing, as he engaged in disruptive behavior after learning of the disposition and penalty (see Matter of Micolo v. Annucci, 140 A.D.3d 1442, 1443, 36 N.Y.S.3d 898 [2016] ; Matter of Garcia v. Prack, 128 A.D.3d 1244, 1245, 8 N.Y.S.3d 609 [2015] ). Inasmuch as petitioner has already served the penalty, which did not entail any loss of good time, his challenge to it is now moot (see Matter of Adams v. Superintendent Bollinier, 118 A.D.3d 1351, 1351, 986 N.Y.S.2d 903 [2014] ; Matter of Sheard v. Fischer, 107 A.D.3d 1261, 1262, 967 N.Y.S.2d 514 [2013] ). Petitioner's remaining contentions are either unpreserved for our review or are lacking in merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
EGAN JR., J.P., LYNCH, ROSE, CLARK and MULVEY, JJ., concur.