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Davis v. Annucci

Supreme Court, Appellate Division, Third Department, New York.
Mar 16, 2017
148 A.D.3d 1399 (N.Y. App. Div. 2017)

Opinion

03-16-2017

In the Matter of Anthony DAVIS, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.

Anthony Davis, Wallkill, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.


Anthony Davis, Wallkill, 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.

Following an investigation into an incident where an inmate had coffee thrown on him that caused a delay in the meal run, petitioner was charged in a misbehavior report with engaging in violent conduct, creating a disturbance and engaging in an unhygienic act. He was found guilty of all three charges at the conclusion of a tier III disciplinary hearing. The determination was affirmed upon administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report and the investigating sergeant's testimony that petitioner admitted throwing the coffee provide substantial evidence to support the determination (see Matter of Cole v. Fischer, 94 A.D.3d 1318, 1318, 942 N.Y.S.2d 389 [2012] ; Matter of Rivera v. Goord, 16 A.D.3d 788, 788, 790 N.Y.S.2d 767 [2005] ). Although the author of the misbehavior report did not witness the incident, he "ascertained the facts of the incident" through an investigation and, therefore, properly issued the misbehavior report (7 NYCRR 251–3.1 [b] ). To the extent that petitioner challenges the lack of an endorsement on the misbehavior report by a company officer who provided information during the investigation, petitioner did not request the company officer as a witness or demonstrate any prejudice as a result therefrom (see Matter of Winbush v. Goord, 6 A.D.3d 821, 822, 773 N.Y.S.2d 918 [2004] ; Matter of Torres v. Goord, 275 A.D.2d 840, 841, 713 N.Y.S.2d 509 [2000] ). Petitioner's remaining contentions, including that he was not provided with various documents, have been reviewed and found to be without merit.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

GARRY, J.P., EGAN JR., ROSE, CLARK and AARONS, JJ., concur.


Summaries of

Davis v. Annucci

Supreme Court, Appellate Division, Third Department, New York.
Mar 16, 2017
148 A.D.3d 1399 (N.Y. App. Div. 2017)
Case details for

Davis v. Annucci

Case Details

Full title:In the Matter of Anthony DAVIS, Petitioner, v. Anthony J. ANNUCCI, as…

Court:Supreme Court, Appellate Division, Third Department, New York.

Date published: Mar 16, 2017

Citations

148 A.D.3d 1399 (N.Y. App. Div. 2017)
2017 N.Y. Slip Op. 1943
48 N.Y.S.3d 642

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