Opinion
524066.
11-02-2017
In the Matter of Roy L. KING, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Roy L. King, Attica, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Julie M. Sheridan of counsel), for respondent.
Roy L. King, Attica, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Julie M. Sheridan 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 a physical altercation in a prison yard involving several inmates, petitioner was charged in three misbehavior reports with numerous prison disciplinary rule violations. The first report indicated that petitioner fought another inmate in the prison yard and made slashing motions towards his face. Petitioner ignored orders to stop fighting and attempted to elude prison staff by running across the prison yard towards a wall. The first misbehavior report charged him with assaulting an inmate, fighting, engaging in violent conduct and refusing a direct order. The second misbehavior report related that, when petitioner ran across the prison yard and reached a wall, he was observed throwing an unknown object over it, then refused to comply with a direct order to place his hands behind his back and had to be physically restrained. That report charged him with refusing a direct order and engaging in violent conduct. The object thrown by petitioner was a razor-type ceramic weapon with a black tape handle and, upon its recovery, petitioner was charged in a third misbehavior report with possessing a weapon. Following a combined tier III disciplinary hearing on the reports, petitioner was found guilty as charged. The determination was affirmed on administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior reports, the testimony of three correction officers involved in the incidents and other proof, including video footage of the prison yard and documents submitted for in camera review, provide substantial evidence to support the determination of guilt as to all charges (see Matter of Cruz v. Annucci, 152 A.D.3d 1100, 1101, 59 N.Y.S.3d 820 [2017] ; Matter of Ramos v. Annucci, 150 A.D.3d 1510, 1511, 54 N.Y.S.3d 755 [2017] ). The differing testimony of petitioner and his inmate witness presented credibility issues for the Hearing Officer to resolve (see Matter of Ramos v. Annucci, 150 A.D.3d at 1511, 54 N.Y.S.3d 755 ; Matter of Thousand v. Prack, 139 A.D.3d 1212, 1212, 32 N.Y.S.3d 348 [2016] ). Similarly, any minor discrepancy between the third misbehavior report and the contraband receipt regarding the time of the incident presented a credibility issue for the Hearing Officer to resolve (see Matter of Marhone v. Schuck, 142 A.D.3d 1232, 1232, 37 N.Y.S.3d 648 [2016] ).
Contrary to petitioner's further contention, the misbehavior reports were sufficiently specific and provided adequate information to afford petitioner an opportunity to prepare a defense (see 7 NYCRR 251–3.1 [c]; Matter of Caraway v. Annucci, 144 A.D.3d 1296, 1297–1298, 45 N.Y.S.3d 221 [2016], lv. denied 29 N.Y.3d 903, 2017 WL 1223645 [2017] ). Petitioner has not demonstrated that he was prejudiced by his employee assistant's alleged deficiencies (see Matter of Canzater–Smith v. Venettozzi, 150 A.D.3d 1518, 1519, 54 N.Y.S.3d 223 [2017] ; Matter of Lane v. Annucci, 127 A.D.3d 1492, 1493, 5 N.Y.S.3d 920 [2015] ) and, in any case, the Hearing Officer remedied those alleged deficiencies at the hearing (Matter of Canzater–Smith v. Venettozzi, 150 A.D.3d at 1519, 54 N.Y.S.3d 223 ; Matter of Telesford v. Annucci, 145 A.D.3d 1304, 1305, 44 N.Y.S.3d 243 [2016] ). 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.
PETERS, P.J., EGAN JR., DEVINE, CLARK and AARONS, JJ., concur.