Opinion
525517
04-19-2018
In the Matter of Noel RIVERA, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Noel Rivera, Comstock, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Noel Rivera, Comstock, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: McCarthy, J.P., Egan Jr., Devine, Mulvey and Rumsey, JJ.
MEMORANDUM AND JUDGMENTProceeding 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 a fight in the prison yard among several inmates that was recorded on surveillance video, petitioner was charged in a misbehavior report with fighting, creating a disturbance and assault. The correction officer who authored the report observed petitioner making a slashing motion at another inmate's face that resulted in a four-inch laceration, after which petitioner fled. Following a tier III disciplinary hearing, petitioner was found guilty of the charges and a penalty was imposed. The determination was upheld on administrative appeal with a reduced penalty, and this CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, hearing testimony, documentary evidence, documents submitted for in camera review and video footage of the prison yard provide substantial evidence to support the determination (see Matter of King v. Annucci, 155 A.D.3d 1145, 1145, 62 N.Y.S.3d 831 [2017] ; Matter of McClain v. Venettozzi, 146 A.D.3d 1264, 1265, 45 N.Y.S.3d 702 [2017] ). The Hearing Officer was free to rely on the report without calling its author as a witness, and petitioner did not request that the author be called to testify (see Matter of Williams v. Kirkpatrick, 153 A.D.3d 996, 996, 56 N.Y.S.3d 916 [2017] ; see also Matter of Boitschenko v. Annucci, 156 A.D.3d 1066, 1066, 65 N.Y.S.3d 488 [2017] ). The testimony of petitioner and his inmate witness that petitioner was not involved in the incident and had been mistakenly identified created a credibility issue for the Hearing Officer to resolve (see Matter of Boitschenko v. Annucci, 156 A.D.3d at 1066, 65 N.Y.S.3d 488 ; Matter of Williams v. Kirkpatrick, 153 A.D.3d at 996, 56 N.Y.S.3d 916). Contrary to petitioner's claim, the misbehavior report afforded him adequate notice of the charges against him and an opportunity to prepare a defense (see 7 NYCRR 251–3.1 [c][1], [4]; Matter of Caraway v. Annucci, 144 A.D.3d 1296, 1297, 45 N.Y.S.3d 221 [2016], lv denied 29 N.Y.3d 903, 2017 WL 1223645 [2017] ). We have considered petitioner's remaining claims and, to the extent that they are preserved for our review, we find that they are without merit.ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
McCarthy, J.P., Egan Jr., Devine, Mulvey and Rumsey, JJ., concur.