Opinion
532919
11-10-2021
In the Matter of Alberto GONZALEZ, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Prisoners' Legal Services of New York, Ithaca (Hallie E. Mitnick of counsel), for petitioner. Letitia James, Attorney General, Albany (Laura Etlinger of counsel), for respondent.
Prisoners' Legal Services of New York, Ithaca (Hallie E. Mitnick of counsel), for petitioner.
Letitia James, Attorney General, Albany (Laura Etlinger of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Aarons, Pritzker and Colangelo, 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 respondent finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with attempted arson, refusing a direct order, assaulting staff, violent conduct, possessing a weapon and committing an unhygienic act. According to the report and other documentation, petitioner became agitated after his cell was searched and he tied his cell gate shut with an electrical cord. Petitioner then refused an order to untie the cord and he tried to light a pile of papers and clothing on fire. A correction officer then attempted to remove the cord and petitioner tried to stab him with a pen. Petitioner was then pepper sprayed and he refused orders to allow himself to be restrained. Correction officers then entered the cell and petitioner stabbed one in the elbow with the pen. Force was used and mechanical restraints were eventually applied. While being escorted to the infirmary, petitioner spit bloody saliva on a correction officer. At the ensuing tier III disciplinary hearing, petitioner pleaded guilty to refusing a direct order and not guilty to the other charges. Following the hearing, petitioner was found not guilty of attempted arson but guilty of the remaining charges. That determination was affirmed on administrative appeal and this CPLR article 78 proceeding ensued.
We confirm. Initially, petitioner's guilty plea to refusing a direct order precludes him from challenging the evidentiary basis for that charge (see Matter of Lewis v. State of N.Y. Dept. of Corr. & Community Supervision, 193 A.D.3d 1160, 1161, 145 N.Y.S.3d 661 [2021] ; Matter of Bouknight v. Annucci, 181 A.D.3d 1079, 1079, 121 N.Y.S.3d 388 [2020] ). As to the remaining charges, the misbehavior report, hearing testimony and documentary evidence provide substantial evidence to support the determination of guilt (see Matter of DeJesus v. Mayes, 196 A.D.3d 992, 992, 148 N.Y.S.3d 406 [2021] ; Matter of Spencer v. Annucci, 190 A.D.3d 1247, 1248, 136 N.Y.S.3d 921 [2021] ). Petitioner's contrary version of the incident presented a credibility issue for the Hearing Officer to resolve (see Matter of McClary v. Annucci, 189 A.D.3d 1812, 1813, 133 N.Y.S.3d 925 [2020], lv denied 37 N.Y.3d 905, 2021 WL 3925878 [2021] ; Matter of White v. Annucci, 169 A.D.3d 1326, 1327, 95 N.Y.S.3d 395 [2019], lv denied 33 N.Y.3d 908, 2019 WL 2461615 [2019], lv dismissed 33 N.Y.3d 1048, 103 N.Y.S.3d 21, 126 N.E.3d 1061 [2019] ). We further reject petitioner's contention that the finding of not guilty of attempted arson compelled a similar finding on the remaining charges (see Matter of Caraway v. Annucci, 159 A.D.3d 1212, 1212, 73 N.Y.S.3d 272 [2018] ; Matter of Davis v. Annucci, 137 A.D.3d 1437, 1438, 27 N.Y.S.3d 291 [2016] ; Matter of Coleman v. Capra, 121 A.D.3d 979, 979, 995 N.Y.S.2d 144 [2014] ). Petitioner's remaining contentions, to the extent not addressed herein, have been considered and found to be without merit.
Egan Jr., J.P., Lynch, Aarons, Pritzker and Colangelo, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.