Opinion
529107
01-23-2020
In the Matter of Devante SPENCER, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Devante Spencer, Ossining, petitioner pro se. Letitia James, Attorney General, Albany (Victor Paladino of counsel), for respondent.
Devante Spencer, Ossining, petitioner pro se.
Letitia James, Attorney General, Albany (Victor Paladino of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Mulvey, Reynolds Fitzgerald and Colangelo, 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 finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, was charged in a misbehavior report with numerous prison disciplinary violations after he was observed making stabbing motions towards another inmate during a fight in the prison yard and ignored several directives to stop such behavior. When chemical agents were deployed to end the altercation, petitioner was observed running from the area then lying on the ground. A weapon resembling an ice pick was subsequently found on the ground where petitioner was lying down. Following a tier III prison disciplinary hearing, petitioner was found guilty of assaulting an inmate, fighting, engaging in violent conduct, creating a disturbance, refusing a direct order and possessing a weapon. Upon administrative appeal, the determination was affirmed. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, testimony at the hearing from the correction officer who witnessed the incident and documentary evidence submitted at the hearing provide substantial evidence to support the determination of guilt (see Matter of McLeod v. Fischer, 122 A.D.3d 1037, 1037–1038, 994 N.Y.S.2d 737 [2014] ; Matter of Bosquet v. Bezio, 69 A.D.3d 1257, 1257, 895 N.Y.S.2d 550 [2010] ; Matter of Benson v. Selsky, 50 A.D.3d 1347, 1347, 854 N.Y.S.2d 824 [2008] ; Matter of Williams v. Goord, 23 A.D.3d 972, 972–973, 805 N.Y.S.2d 438 [2005] ). Petitioner's exculpatory statements and denial of his involvement in the incident presented credibility issues for resolution by the Hearing Officer (see Matter of Townsend v. Noeth, 170 A.D.3d 1353, 1353–1354, 95 N.Y.S.3d 654 [2019] ; Matter of Williams v. Goord, 23 A.D.3d at 973, 805 N.Y.S.2d 438 ).
We reject petitioner's contention that he was improperly denied the right to call certain witnesses, as petitioner failed to demonstrate how his requested witnesses would have provided relevant or nonredundant testimony regarding the determination of guilt (see Matter of Zielinski v. Venettozzi, 177 A.D.3d 1047, 1048, 112 N.Y.S.3d 338 [2019] ; Matter of Anselmo v. Annucci, 176 A.D.3d 1283, 1285, 109 N.Y.S.3d 512 [2019] ). "Moreover, the failure to provide petitioner with a written explanation for the denial of the witness[es] does not require annulment as the reason for the denial is expressly stated in the record" ( Matter of Pender v. Fischer, 69 A.D.3d 1099, 1100, 893 N.Y.S.2d 347 [2010], lv denied 14 N.Y.3d 708, 2010 WL 1707999 [2010] ; see Matter of Davis v. Prack, 95 A.D.3d 1574, 1575, 944 N.Y.S.2d 805 [2012], lv denied 19 N.Y.3d 812, 2012 WL 4017458 [2012] ). We have considered petitioner's remaining procedural claims, including his contentions that he received inadequate employee assistance and that the Hearing Officer was biased, and, to the extent that they are preserved for our review, find that they are without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Garry, P.J., Egan Jr., Mulvey, Reynolds Fitzgerald and Colangelo, JJ., concur.