Opinion
525458
03-15-2018
In the Matter of Reginald MCDONALD, Appellant, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Reginald McDonald, Stormville, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Reginald McDonald, Stormville, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: Garry, P.J., McCarthy, Clark, Aarons and Rumsey, JJ.
MEMORANDUM AND ORDERAppeal from a judgment of the Supreme Court (Cahill, J.), entered May 12, 2017 in Ulster County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in two misbehavior reports with lewd conduct, obstructing visibility, refusing a direct order and violent conduct. Following a tier III disciplinary hearing, petitioner was found guilty of all charges and a penalty was imposed. Petitioner's subsequent administrative appeal was unsuccessful, prompting him to commence this CPLR article 78 proceeding to challenge respondent's determination. Supreme Court dismissed petitioner's application, and petitioner now appeals.
Inasmuch as the petition raised a question of substantial evidence, Supreme Court should have transferred this proceeding to this Court in the first instance. Nonetheless, we will treat this matter as if it had been properly transferred and will decide the issues de novo (see
The detailed misbehavior reports and the testimony of their authors constitute substantial evidence to support the determination of guilt (see Matter of Tigner v. Annucci, 147 A.D.3d 1138, 1139, 45 N.Y.S.3d 821 [2017] ; Matter of Lashway v. Fischer, 110 A.D.3d 1420, 1420, 973 N.Y.S.2d 496 [2013] ; Matter of Fero v. Prack, 110 A.D.3d 1128, 1128, 972 N.Y.S.2d 115 [2013] ). Petitioner's stated explanation—that he was just washing up and never intended to expose himself to the female correction officer—and his related denial that he engaged in either lewd or violent behavior presented a credibility issue for the Hearing Officer to resolve (see Matter of Lopez v. Annucci, 146 A.D.3d 1262, 1263, 45 N.Y.S.3d 700 [2017] ; Matter of Coleman v. Fischer, 87 A.D.3d 778, 779, 928 N.Y.S.2d 153 [2011] ), as did his assertion that the misbehavior reports were fabricated in order to retaliate against him (see Matter of Sital v. Fischer, 72 A.D.3d 1306, 1307, 904 N.Y.S.2d 228 [2010], lv dismissed 15 N.Y.3d 823, 908 N.Y.S.2d 156, 934 N.E.2d 890 [2010] ). Finally, the record does not disclose that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Malave v. Bedard, 153 A.D.3d 1536, 1536, 60 N.Y.S.3d 700 [2017] ; Matter of Angarita v. Annucci, 153 A.D.3d 1535, 1535, 60 N.Y.S.3d 705 [2017] ). Accordingly, the judgment is affirmed.ORDERED that the judgment is affirmed, without costs.
Garry, P.J., McCarthy, Clark, Aarons and Rumsey, JJ., concur.
Matter of Staton v. Goord, 41 A.D.3d 1105, 1105 n, 839 N.Y.S.2d 820 [2007] ).