Opinion
02-02-2017
In the Matter of Derrick TIGNER, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Derrick Tigner, Auburn, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Derrick Tigner, Auburn, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
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.
After a correction officer observed petitioner wearing a watch that was prohibited and attempted to escort petitioner to the package room to have that watch removed from the facility, petitioner became verbally combative, waved his hands aggressively and refused certain commands given by the correction officer. As a result, petitioner was charged in a misbehavior report with making threats, refusing a direct order, creating a disturbance, demonstrating, engaging in violent conduct and violating movement procedures. Following a tier III disciplinary hearing, petitioner was found not guilty of demonstrating and guilty of the remaining charges. The determination was affirmed upon administrative appeal, and this CPLR article 78 proceeding ensued.We confirm. The misbehavior report and the hearing testimony of the correction officer who authored that report provide substantial evidence supporting the determination of guilt (see Matter of Boyd v. Prack, 136 A.D.3d 1136, 1136, 24 N.Y.S.3d 457 [2016] ; Matter of Wilson v. Annucci, 129 A.D.3d 1422, 1422, 10 N.Y.S.3d 908 [2015] ; Matter of Douglas v. Fischer, 126 A.D.3d 1244, 1245, 3 N.Y.S.3d 654 [2015], lv. denied 26 N.Y.3d 904, 2015 WL 5254842 [2015] ). The conflicting narrative of the incident offered in the testimony of petitioner and his inmate witnesses presented a credibility issue for the Hearing Officer to resolve (see e.g. Matter of Adams v. Fischer, 116 A.D.3d 1269, 1270, 983 N.Y.S.2d 746 [2014] ; Matter of Espinal v. Fischer, 114 A.D.3d 978, 979, 979 N.Y.S.2d 864 [2014] ).
Turning to petitioner's procedural contentions, the misbehavior report was sufficiently detailed in terms of the time, place and conduct at issue to enable petitioner to prepare an adequate defense (see Matter of Bailey v. Annucci, 142 A.D.3d 1195, 1196, 37 N.Y.S.3d 633 [2016] ; Matter of Cognata v. Fischer, 85 A.D.3d 1456, 1457, 925 N.Y.S.2d 725 [2011] ; see also 7 NYCRR 251–3.1 [c][1], [4] ). While petitioner avers that he was improperly denied the right to call certain witnesses at the hearing, the testimony of the requested witnesses regarding the log book entries would have been immaterial and unnecessary given that the misbehavior report provided adequate detail of the incident (see 7 NYCRR 254.5 [a]; Matter of Burgess v. Bellnier, 138 A.D.3d 989, 990, 31 N.Y.S.3d 89 [2016] ; Matter of Gaston v. Fischer, 109 A.D.3d 1063, 1064, 971 N.Y.S.2d 376 [2013] ; cf. Matter of Moncrieffe v. Goord, 249 A.D.2d 715, 716, 671 N.Y.S.2d 567 [1998] ). We have examined petitioner's remaining contentions and find them to be without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
PETERS, P.J., McCARTHY, EGAN JR., LYNCH and AARONS, JJ., concur.