Opinion
520490.
04-14-2016
In the Matter of Johnathan RAMIREZ, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Johnathan Ramirez, Attica, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Johnathan Ramirez, Attica, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: LAHTINEN, J.P., McCARTHY, EGAN JR. and DEVINE, JJ.
Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Franklin County) to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.
Following an assault on an inmate in a prison cell by multiple inmates, petitioner was charged in a misbehavior report with assaulting an inmate, violent conduct, creating a disturbance and possessing a weapon. Following a tier III disciplinary hearing, petitioner was found guilty of all charges, and a penalty was imposed. The finding of guilt was affirmed on administrative appeal, with a modified penalty. Petitioner thereafter commenced this CPLR article 78 proceeding.
We confirm. Contrary to petitioner's contention, a review of the record, including the Hearing Officer's consideration of the misbehavior report together with the testimony and documentation provided by prison officials who witnessed the aftermath of the incident and investigated it, provide substantial evidence to support the determination of guilt (see Matter of James v. New York State Dept. of Corr. & Community Supervision, 127 A.D.3d 1537, 1537, 5 N.Y.S.3d 924 [2015] ; Matter of Fernandez v. Fischer, 110 A.D.3d 1422, 1422–1423, 973 N.Y.S.2d 886 [2013] ; Matter of Watson v. Fischer, 108 A.D.3d 1006, 1007, 969 N.Y.S.2d 263 [2013] ; cf. Matter of Lopez v. New York State
Dept. of Corr. & Community Supervision, 125 A.D.3d 1032, 1033, 2 N.Y.S.3d 696 [2015] ). Petitioner's contrary assertion that he did not attack the victim, in addition to the testimony from the victim and other inmates indicating that they did not see who had done the stabbing, created credibility questions for the Hearing Officer to resolve (see Matter of James v. New York State Dept. of Corr. & Community Supervision, 127 A.D.3d at 1537–1538, 5 N.Y.S.3d 924 ; Matter of Spencer v. Annucci, 122 A.D.3d 1043, 1044, 994 N.Y.S.2d 873 [2014] ; Matter of Watson v. Fischer, 108 A.D.3d 1006, 1007, 969 N.Y.S.2d 263 [2013] ).
To the extent that petitioner preserved for our review his contention that the hearing was prematurely commenced (see 7 NYCRR 253.6 [a] ), the record reflects that, although the hearing was initially commenced approximately 20 hours after petitioner met with his assistant, the Hearing Officer, after reading the misbehavior report into the record and allowing petitioner to plead not guilty, adjourned the hearing for a week during which time petitioner was provided with the investigative report. Accordingly, we find that petitioner was not prejudiced by any purported error in commencing the hearing approximately four hours too early, and petitioner had an adequate amount of time to review the relevant documents and prepare a defense (see Matter of Gray v. Kirkpatrick, 59 A.D.3d 1092, 1093, 873 N.Y.S.2d 816 [2009] ; Matter of Rodriguez v. Herbert, 270 A.D.2d 889, 889, 706 N.Y.S.2d 284 [2000] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.