Opinion
525119
03-15-2018
In the Matter of Felix ROMERO, Petitioner, v. Paul M. GONYEA, as Superintendent of Mohawk Correctional Facility, et al., Respondents.
Felix Romero, Batavia, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondents.
Felix Romero, Batavia, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondents.
Before: Garry, P.J., McCarthy, Aarons, Rumsey and Pritzker, 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 respondent Superintendent of Mohawk Correctional Facility finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner and another inmate were observed punching each other with closed fists in the prison television room and ignored a correction officer's directive to stop. As a result of this incident, petitioner was charged in a misbehavior report with fighting, violent conduct and refusing a direct order. Following a tier II disciplinary hearing, petitioner was found guilty as charged. The determination was affirmed on administrative appeal, and this CPLR article 78 proceeding ensued.We confirm. The misbehavior report and testimony of a correction officer who responded to the incident provide substantial evidence to support the determination of guilt (see Matter ofMcClain v. Venettozzi, 146 A.D.3d 1264, 1265, 45 N.Y.S.3d 702 [2017]; Matter ofMullins v. Venettozzi, 141 A.D.3d 1063, 1064, 35 N.Y.S.3d 669 [2016] ). Although petitioner relies upon the testimony of the correction officer who responded to the incident to establish that the incident did not occur as reported, the correction officer's testimony did not directly contradict the author of the misbehavior report (see generally Matter of Al–Matin v. Brown, 86 A.D.3d 902, 902, 927 N.Y.S.2d 468 [2011] ). Moreover, any alleged inconsistencies in the evidence and testimony, along with petitioner's denial of involvement in the incident, presented credibility issues for the Hearing Officer to resolve (see Matter ofJones v. Annucci, 156 A.D.3d 1093, 1094, 65 N.Y.S.3d 480 [2017] ; Matter ofCampos v. Prack, 143 A.D.3d 1020, 1021, 38 N.Y.S.3d 448 [2016] ). Contrary to petitioner's contention, the hearing record also establishes that the Hearing Officer considered the medical report that petitioner proffered to support his claim that he was not involved in the incident. Finally, a review of petitioner's administrative appeal reflects that respondent Superintendent of Mohawk Correctional Facility properly considered the evidence in rendering his determination (see Matter ofVigliotti v. Duncan, 10 A.D.3d 776, 777, 781 N.Y.S.2d 800 [2004], lv dismissed 4 N.Y.3d 738, 790 N.Y.S.2d 639, 823 N.E.2d 1286 [2004] ).
Petitioner's remaining contentions, including his claim that the hearing disposition sheet contained an incorrect date, are unpreserved for our review.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Garry, P.J., McCarthy, Aarons, Rumsey and Pritzker, JJ., concur.