Opinion
534650
09-22-2022
In the Matter of Manuel RIVERA, Petitioner, v. Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Manuel Rivera, Alden, petitioner pro se. Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Manuel Rivera, Alden, petitioner pro se.
Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Reynolds Fitzgerald, Ceresia and McShan, JJ.
MEMORANDUM AND JUDGMENT 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 assaulting staff, forcible touching, making threats, refusing a direct order and harassment. According to the report, petitioner was being pat frisked and was ordered by the correction officer to put his hands up and into his body when he reached back and grabbed the officer's breasts. The officer then pushed petitioner's hands away from her before placing him back in his cell. As the officer was walking away from the cell, petitioner threatened to kill the officer and used other abusive and insolent language toward her. Following a tier III disciplinary hearing, petitioner was found guilty as charged. That determination was affirmed upon administrative appeal and this CPLR article 78 proceeding ensued.
We confirm. Contrary to petitioner's contention, the misbehavior report, hearing testimony and video evidence provide substantial evidence to support the determination of guilt (see Matter of Lundy v. Annucci, 203 A.D.3d 1364, 1365, 160 N.Y.S.3d 923 [3d Dept. 2022] ; Matter of Chung v. Annucci, 199 A.D.3d 1147, 1148, 156 N.Y.S.3d 590 [3d Dept. 2021] ). Petitioner's testimony that the contact with the officer was unintended and incidental presented a credibility issue for the Hearing Officer to resolve (see Matter of Dunbar v. Annucci, 173 A.D.3d 1598, 1599, 101 N.Y.S.3d 658 [3d Dept. 2019] ; Matter of Robinson v. Lee, 155 A.D.3d 1169, 1170, 62 N.Y.S.3d 820 [3d Dept. 2017] ). Petitioner's assertion that he was improperly denied a witness is unpreserved for our review as this issue is admittedly raised for the first time before this Court (see Matter of Wilson v. Venettozzi, 160 A.D.3d 1307, 1308, 73 N.Y.S.3d 913 [3d Dept. 2018] ; Matter of Bonnemere v. Annucci, 153 A.D.3d 983, 984, 56 N.Y.S.3d 909 [3d Dept. 2017] ).
Although petitioner requests that this Court reach this issue in the interest of justice, "there is no discretionary authority or interest of justice jurisdiction in proceedings to review administrative determinations pursuant to CPLR article 78" (Matter of Barnes v. Venettozzi, 135 A.D.3d 1250, 1251, 23 N.Y.S.3d 488 [3d Dept. 2016] [internal quotation marks and citation omitted]; see Matter of Russo v. Annucci, 130 A.D.3d 1124, 1124, 10 N.Y.S.3d 917 [3d Dept. 2015] ).
Garry, P.J., Egan Jr., Reynolds Fitzgerald, Ceresia and McShan, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.