Opinion
No. CV-24-0247
12-05-2024
In the Matter of Joseph Pleasant, Petitioner, v. Joshua Shope, as Acting Director of Special Housing and Inmate Disciplinary Programs. Respondent.
Joseph Pleasant, Auburn, petitioner pro se. Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Calendar Date:November 8, 2024
Joseph Pleasant, Auburn, petitioner pro se.
Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Before: Egan Jr., J.P., Clark, Lynch, Reynolds Fitzgerald and Fisher, JJ.
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, an incarcerated individual, was charged in a misbehavior report with violent conduct, assault on an incarcerated individual, fighting and bribery/extortion. Following a tier III disciplinary hearing, petitioner was found guilty as charged. The determination was upheld upon administrative appeal, and this CPLR article 78 proceeding ensued.
Initially, respondent concedes, and we agree, that substantial evidence does not support the part of the determination finding petitioner guilty of fighting and, thus, we annul that part of the determination (see Matter of Sumter v Annucci, 168 A.D.3d 1306, 1306 [3d Dept 2019]; Matter of Mears v Venettozzi, 150 A.D.3d 1498, 1499 [3d Dept 2017], lv denied 30 N.Y.3d 905 [2017]). As no loss of good time was imposed and petitioner has already served the penalty, the matter need not be remitted for a reassessment of the penalty (see Matter of Wright v Annucci, 190 A.D.3d 1249, 1249 [3d Dept 2021]; Matter of White v Annucci, 169 A.D.3d 1326, 1327 [3d Dept 2019], lv dismissed 33 N.Y.3d 1048 [2019], lv denied 33 N.Y.3d 908 [2019]). Upon that same basis, petitioner's challenge to the severity of the penalty has been rendered moot (see Matter of Clark v Jordan, 212 A.D.3d 976, 979 [3d Dept 2023]). As to the remaining charges, the misbehavior report, unusual incident report, documentary evidence and the hearing testimony - including the confidential testimony and documentation considered by the Hearing Officer in camera - provide substantial evidence to support the determination finding petitioner guilty of violent conduct, assault on an incarcerated individual and bribery/extortion (see Matter of Abdullah v New York State Dept. of Corr. & Community Supervision, 222 A.D.3d 1095, 1095 [3d Dept 2023]; Matter of Lundy v Annucci, 219 A.D.3d 1622, 1622 [3d Dept 2023]; Matter of Ketchmore v Annucci, 199 A.D.3d 1150, 1150 [3d Dept 2021]). Any conflicting testimony or evidence was not dispositive and merely raised credibility issues for the Hearing Officer to resolve (see Matter of Lightner v Venettozzi, 197 A.D.3d 1448, 1448 [3d Dept 2021]; Matter of Jones v Annucci, 156 A.D.3d 1093, 1094 [3d Dept 2017]).
Petitioner's claim that the Hearing Officer did not properly assess the credibility of the confidential information, to the extent preserved for our review (see Matter of Kelly v Mayes, 210 A.D.3d 1168, 1169-1170 [3d Dept 2022]; Matter of Lightner v Venettozzi, 197 A.D.3d at 1449), is without merit. In this regard, the record reflects that the Hearing Officer's personal interview of the confidential source "was sufficiently thorough and specific... to assess[ ] the reliability and credibility of the confidential information provided" (Matter of Headley v Annucci, 205 A.D.3d 1189, 1189-1190 [3d Dept 2022]; see Matter of Olivero v New York State Dept. of Corr. & Community Supervision, 219 A.D.3d 1030, 1030 [3d Dept 2023]; Matter of Cajigas v Rodriguez, 214 A.D.3d 1293, 1293-1294 [3d Dept 2023]). We are further unpersuaded by petitioner's allegations of bias, as the Hearing Officer expressly considered petitioner's testimony and that of his witnesses, and an adverse ruling or credibility determination is not indicative of bias nor is there is any indication that the determination of guilt flowed from any alleged bias (see Matter of Farley v Annucci, 224 A.D.3d 969, 971 [3d Dept 2024]; Matter of Williams v Kirkpatrick, 153 A.D.3d 996, 996 [3d Dept 2017]).
Petitioner's contentions pertaining to employee assistance, timing of the hearing and notice of the charges are unpreserved for our review as they were not raised at the hearing when they could have been addressed (see Matter of Wiggins v Venettozzi, 203 A.D.3d 1362, 1362-1363 [3d Dept 2022]; Matter of Diaz v Lee, 171 A.D.3d 1382, 1382 [3d Dept 2019]; Matter of Redmon v Smith, 141 A.D.3d 1071, 1071 [3d Dept 2016]). His remaining arguments, to the extent properly before us, have been considered and found to be lacking in merit.
Egan Jr., J.P., Clark, Lynch, Reynolds Fitzgerald and Fisher, JJ., concur.
ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of fighting; petition granted to that extent and respondent is directed to expunge all references to that charge from petitioner's institutional record; and, as so modified, confirmed.