Opinion
535425
06-29-2023
In the Matter of Jerry KNIGHT, Petitioner, v. Anthony RODRIGUEZ, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Jerry Knight, Coxsackie, petitioner pro se. Letitia James, Attorney General, Albany (Beezly J. Kiernan of counsel), for respondent.
Jerry Knight, Coxsackie, petitioner pro se.
Letitia James, Attorney General, Albany (Beezly J. Kiernan of counsel), for respondent.
Before: Clark, J.P., Aarons, Pritzker, Reynolds Fitzgerald and Ceresia, 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 the Acting Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with violent conduct, creating a disturbance, fighting and refusing a direct order. According to the misbehavior report, petitioner participated in an altercation involving roughly 65 other incarcerated individuals. Following a tier III disciplinary hearing, petitioner was found guilty of all charges and a penalty was imposed. The determination was affirmed upon administrative appeal and this CPLR article 78 proceeding ensued. We confirm. The misbehavior report, the testimony of its author and video surveillance footage of the incident provide substantial evidence to support the determination of guilt (see Matter of McClary v. Annucci, 189 A.D.3d 1812, 1813, 133 N.Y.S.3d 925 [3d Dept. 2020], lv denied 37 N.Y.3d 905, 2021 WL 3925878 [2021] ; Matter of Hart v. Rodriguez, 169 A.D.3d 1148, 1148–1149, 93 N.Y.S.3d 720 [3d Dept. 2019], lv denied 33 N.Y.3d 910, 2019 WL 2623982 [2019] ; Matter of Pequero v. Fischer, 122 A.D.3d 992, 993, 994 N.Y.S.2d 483 [3d Dept. 2014] ). Petitioner's differing version of his actions during the incident presented a credibility issue for the Hearing Officer to resolve (see Matter of Gonzalez v. Annucci, 199 A.D.3d 1146, 1147, 156 N.Y.S.3d 588 [3d Dept. 2021] ; Matter of Fernandez v. Annucci, 161 A.D.3d 1431, 1432, 77 N.Y.S.3d 721 [3d Dept. 2018] ).
Contrary to petitioner's assertions, the misbehavior report was sufficiently detailed to provide him notice of the charges and to enable him to discern his role in the incident, thereby affording him an opportunity to prepare a defense (see 7 NYCRR 251–3.1 [c]; Matter of Bekka v. Annucci, 168 A.D.3d 1334, 1335, 93 N.Y.S.3d 450 [3d Dept. 2019] ; Matter of Robinson v. Lee, 155 A.D.3d 1169, 1170, 62 N.Y.S.3d 820 [3d Dept. 2017] ). We similarly reject petitioner's contention that he received inadequate employee assistance inasmuch as he did not receive a copy of the unusual incident report as requested. The record reflects that at the time of the hearing only a preliminary report was available, which was nevertheless read into the record in petitioner's presence (see Matter of Malloy v. Rodriguez, 200 A.D.3d 1382, 1383, 160 N.Y.S.3d 401 [3d Dept. 2021] ; Matter of Funches v. State of New York Dept. of Corr. & Community Supervision, 163 A.D.3d 1390, 1391, 80 N.Y.S.3d 742 [3d Dept. 2018], lv dismissed 32 N.Y.3d 1140, 92 N.Y.S.3d 177, 116 N.E.3d 661 [2019] ). In any event, we have reviewed the final unusual incident report, "which does not contain any information exonerating petitioner of his guilt, nor has petitioner established that his ability to present a defense was prejudiced by not having received a copy of such report" ( Matter of Gaston v. Fischer, 109 A.D.3d 1063, 1064, 971 N.Y.S.2d 376 [3d Dept. 2013] ; see Matter of Malloy v. Rodriguez, 200 A.D.3d at 1383, 160 N.Y.S.3d 401 ). Notably, the Hearing Officer did not rely upon the unusual incident report in rendering the determination (see e.g. Matter of Legette v. Rodriguez, 213 A.D.3d 1066, 1067, 183 N.Y.S.3d 202 [3d Dept. 2023] ).
We are similarly unpersuaded by petitioner's assertion that he was improperly denied the testimony of a certain correction officer, as the record reflects that petitioner never requested such testimony, and "the Hearing Officer was under no obligation to present petitioner's case for him" ( Matter of Bekka v. Annucci, 168 A.D.3d at 1335, 93 N.Y.S.3d 450 [internal quotation marks and citations omitted]; see Matter of Brown v. Venettozzi, 162 A.D.3d 1434, 1436, 81 N.Y.S.3d 243 [3d Dept. 2018] ). Although petitioner also mentioned his intention to call an unnamed incarcerated individual as a witness to his involvement in the incident, he failed to identify any such individual and, further, the record reflects that the specific individuals with whom petitioner may have had contact during the altercation could not be identified given the large number of people involved in the incident (see Matter of Letizia v. Graham, 119 A.D.3d 1296, 1297, 990 N.Y.S.2d 364 [3d Dept. 2014], lv denied 24 N.Y.3d 912, 2015 WL 94849 [2015] ). Petitioner's challenge to the timeliness of the hearing is likewise without merit, as the record reflects that the hearing was commenced and completed in accordance with a properly obtained extension (see 7 NYCRR 251–5.1 [a], [b]; Matter of Anselmo v. Annucci, 176 A.D.3d 1283, 1284, 109 N.Y.S.3d 512 [3d Dept. 2019] ; Matter of Gonzalez v. Annucci, 168 A.D.3d 1291, 1292, 92 N.Y.S.3d 464 [3d Dept. 2019] ). Petitioner's remaining procedural contentions, to the extent properly before us, have been considered and found to be without merit.
Clark, J.P., Aarons, Pritzker, Reynolds Fitzgerald and Ceresia, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.