Opinion
02-03-2017
In the Matter of Patrick JEANTY, Petitioner, v. Harold GRAHAM, Superintendent, Auburn Correctional Facility, Respondent.
Patrick Jeanty, Petitioner Pro Se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of Counsel), for Respondent.
Patrick Jeanty, Petitioner Pro Se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of Counsel), for Respondent.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, DeJOSEPH, AND CURRAN, JJ.
MEMORANDUM:
Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a tier II disciplinary hearing, that he violated various inmate rules. As respondent correctly concedes, those parts of the determination finding that petitioner violated inmate rules 107.10 (7 NYCRR 270.2 [B][8][i] [interference with employee] ) and 107.11 (7 NYCRR 270.2 [B] [8][ii] [harassment] ) are not supported by substantial evidence. We therefore modify the determination and grant the petition in part by annulling those parts of the determination finding that petitioner violated those inmate rules, and we direct respondent to expunge from petitioner's institutional record all references to the violation of those rules. "Because the penalty has already been served and there was no recommended loss of good time, there is no need to remit the matter to respondent for reconsideration of the penalty" (Matter of Reid v. Saj, 119 A.D.3d 1445, 1446, 990 N.Y.S.2d 398 ).
Contrary to petitioner's contention, those parts of the determination finding that he violated inmate rules 106.10 (7 NYCRR 270.2 [B][7][i] [refusal to obey order] ) and 115.10 (7 NYCRR 270.2 [B][16][i] [refusal to comply with search or frisk] ) are supported by substantial evidence (see People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139–140, 495 N.Y.S.2d 332, 485 N.E.2d 997 ; Matter of Green v. Sticht, 124 A.D.3d 1338, 1339, 1 N.Y.S.3d 670, lv. denied 26 N.Y.3d 906, 2015 WL 5553451 ; cf. Matter of Jones v. Fischer, 139 A.D.3d 1219, 1219–1220, 32 N.Y.S.3d 351 ). Petitioner's testimony that he did not commit the alleged violations and that the charges were brought against him in retaliation for an earlier dispute "merely presented an issue of credibility that the Hearing Officer was entitled to resolve against him" (Green, 124 A.D.3d at 1339, 1 N.Y.S.3d 670 ; see Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 ; Matter of Maybanks v. Goord, 306 A.D.2d 839, 840, 761 N.Y.S.2d 566 ).
We reject petitioner's remaining contentions. "[T]he record does not establish that the Hearing Officer was biased or that the determination flowed from the alleged bias" (Matter of Trapani v. Annucci, 117 A.D.3d 1473, 1474, 984 N.Y.S.2d 722 [internal quotation marks omitted]; see Matter of Barnes v. Annucci, 140 A.D.3d 1779, 1779, 32 N.Y.S.3d 804 ), the gaps in the hearing transcript "do not preclude meaningful review of petitioner's contentions" (Matter of Gray v. Kirkpatrick, 59 A.D.3d 1092, 1093, 873 N.Y.S.2d 816 [internal quotation marks omitted]; cf. Matter of Baez v. Bezio, 77 A.D.3d 745, 746, 908 N.Y.S.2d 608, lv. dismissed 16 N.Y.3d 752, 919 N.Y.S.2d 106, 944 N.E.2d 641 ), and petitioner has not established that the Hearing Officer conducted an improper off-the-record investigation (see generally Matter of Jones v. Fischer, 111 A.D.3d 1362, 1363, 974 N.Y.S.2d 220 ). Inasmuch as petitioner failed to contend in his administrative appeal that the Hearing Officer improperly declined to admit a misbehavior report against another inmate in evidence, he did not exhaust his administrative remedies with respect to that contention, and we have no discretionary authority to reach it (see generally Matter of Sabino v. Hulihan, 105 A.D.3d 1426, 1426, 963 N.Y.S.2d 897 ). Finally, even assuming, arguendo, that petitioner's challenge to the determination as arbitrary and capricious was adequately raised in his administrative appeal (cf. Matter of Colon v. Fischer, 83 A.D.3d 1500, 1502, 921 N.Y.S.2d 441 ), we conclude that it lacks merit (see generally Matter of Johnson v. Goord, 280 A.D.2d 998, 998, 720 N.Y.S.2d 428 ).
It is hereby ORDERED that the determination so appealed from is unanimously modified on the law and the petition is granted in part by annulling those parts of the determination finding that petitioner violated inmate rules 107.10 (7 NYCRR 270.2 [B][8][i] ) and 107.11 (7 NYCRR 270.2 [B][8][ii] ), and as modified the determination is confirmed without costs, and respondent is directed to expunge from petitioner's institutional record all references to the violation of those inmate rules.