Opinion
12-15-2016
In the Matter of Roberto DEJESUS, Petitioner, v. Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Robert Dejesus, Attica, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Owen Demuth of counsel), for respondent.
Robert Dejesus, Attica, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Owen Demuth of counsel), for respondent.
Before: PETERS, P.J., McCARTHY, ROSE, MULVEY and AARONS, JJ.
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 certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with assault on an inmate, possessing a weapon, creating a disturbance and fighting. As he was being escorted to the special housing unit following the issuance of the misbehavior report, he threatened the escorting correction officers, resulting in him being charged in a second misbehavior report with making threats. At a combined tier III disciplinary hearing on both reports, petitioner pleaded guilty to the charge of making threats in the second misbehavior report, and, following the hearing, he was found guilty of all of the charges. This determination was affirmed on administrative appeal and this CPLR article 78 proceeding ensued.
Petitioner's guilty plea precludes any challenge to the sufficiency of the evidence supporting the determination of guilt with respect to the charge in the second misbehavior report (see Matter of Shufelt v. Annucci, 138 A.D.3d 1336, 1337, 31 N.Y.S.3d 243 [2016] ). Regarding the challenge to the determination on the first misbehavior report, the report, hearing testimony and confidential information provide substantial evidence to support the determination of guilt (see Matter of Chandler v. Annucci, 135 A.D.3d 1258, 1259, 23 N.Y.S.3d 494 [2016] ; Matter of Baez v. Bellnier, 131 A.D.3d 771, 771, 14 N.Y.S.3d 718 [2015] ). Contrary to petitioner's contention, the misbehavior report was adequately detailed to apprise petitioner of the charges against him and enable him to prepare a defense (see Matter of Kairis v. Smith, 141 A.D.3d 1054, 1054, 35 N.Y.S.3d 664 [2016] ; Matter of Eugenio v. Fischer, 112 A.D.3d 1017, 1017, 976 N.Y.S.2d 316 [2013], lv. denied 22 N.Y.3d 863, 2014 WL 1243300 [2014] ). Moreover, the Hearing Officer's interview with the correction officer who authored the misbehavior report and conducted the investigation was sufficiently detailed to independently assess the reliability of the confidential information (see Matter of Pompey v. Prack, 128 A.D.3d 1251, 1252, 8 N.Y.S.3d 499 [2015] ; Matter of White v. Fischer, 121 A.D.3d 1478, 1479, 994 N.Y.S.2d 467 [2014] ). Further, the record reflects that the hearing was held in a fair and impartial manner, and there is nothing to indicate that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Hand v. Greene, 118 A.D.3d 1245, 1246, 989 N.Y.S.2d 151 [2014] ; Matter of Paddyfote v. Fischer, 118 A.D.3d 1240, 1241, 987 N.Y.S.2d 719 [2014] ).
Respondent concedes, however, and we agree, that the Hearing Officer improperly denied petitioner's request to call two inmate witnesses. Although the Hearing Officer noted that the two witnesses had informed petitioner's employee assistant that they refused to testify, no explanation for the refusal was given and the Hearing Officer made no attempt to verify the basis for the refusal. Accordingly, we find that petitioner's regulatory right to call witnesses was violated and the determination of guilt with respect to the charges in the first misbehavior report must be annulled and the matter remitted for a new hearing (see Matter of Sorrentino v. Fischer, 106 A.D.3d 1309, 1310, 964 N.Y.S.2d 918 [2013], appeal dismissed 22 N.Y.3d 1060, 981 N.Y.S.2d 365, 4 N.E.3d 377 [2014] ; Matter of Dickerson v. Fischer, 105 A.D.3d 1232, 1232, 962 N.Y.S.2d 823 [2013] ).
ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of assault on an inmate, possessing a weapon, creating a disturbance and fighting; petition granted to that extent and matter remitted to the Commissioner of Corrections and Community Supervision for further proceedings not inconsistent with this Court's decision; and, as so modified, confirmed.