Opinion
07-28-2016
In the Matter of Edward L. NEW III, Petitioner, v. Lieutenant VASILE, as Hearing Officer, et al., Respondents.
Edward L. New III, Buffalo, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondents.
Edward L. New III, Buffalo, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondents.
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 Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner approached a correction officer, informed the officer that he had information to tell him and then the pair went into a closet. Once inside, petitioner grabbed the officer's genitals and said, “[W]e are alone just me and you.” As a result of this incident, petitioner was charged in a misbehavior report with engaging in forcible touching, assaulting staff, making threats and interfering with an employee. Following a tier III disciplinary hearing, petitioner was found guilty as charged. The determination was affirmed upon administrative appeal, and this CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, related documentation and detailed testimony of its author provide substantial evidence to support the determination of guilt (see Matter of Pellot v. Fischer, 67 A.D.3d 1231, 1231, 890 N.Y.S.2d 132 [2009] ; Matter of Taveras v. Fischer, 59 A.D.3d 827, 828, 872 N.Y.S.2d 681 [2009], lv. denied 13 N.Y.3d 702, 2009 WL 2622092 [2009] ). Petitioner's claim that he did not intentionally touch or grab the correction officer presented a credibility issue for the Hearing Officer to resolve (see Matter of White v. Prack, 131 A.D.3d 1333, 1334, 16 N.Y.S.3d 786 [2015], lv. denied 26 N.Y.3d 920, 2016 WL 699844 [2016] ). As to petitioner's claim that no force was used in the incident, forcible touching includes, among other conduct, grabbing (see 7 NYCRR 270.2 [B][2] [ii] ). Finally, petitioner's remaining claims, including his assertion that the Hearing Officer was biased and that the penalty imposed was excessive, are unpreserved for our review (see Matter of Wigfall v. Department of Corr. Servs., 100 A.D.3d 1211, 1213, 954 N.Y.S.2d 274 [2012] ; Matter of Maldonado v. New York State Dept. of Corr. Servs., 97 A.D.3d 873, 874, 947 N.Y.S.2d 685 [2012] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
PETERS, P.J., McCARTHY, ROSE, CLARK and AARONS, JJ., concur.