Opinion
07-28-2016
In the Matter of Jason A. VEGA, Petitioner, v. Albert PRACK, as Director of Special Housing and Inmate Disciplinary Programs, et al., Respondents.
Jason A. Vega, Altona, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondents.
Jason A. Vega, Altona, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondents.
Opinion 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 Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner, an inmate, was charged in a misbehavior report with refusing a direct order, interfering with an employee and violating movement regulations. According to the report, petitioner was in the prison yard when several general orders were given for all inmates to lie face down on the ground. Petitioner admittedly did not comply and was observed by a correction officer leaning against a chair after the orders were given. The officer gave petitioner several more orders to lie down and petitioner ultimately complied. Following a tier III disciplinary hearing, petitioner was found guilty as charged and this determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
Initially, respondents concede, and we agree, that the part of the determination finding petitioner guilty of interfering with an employee is not supported by the record. The determination must therefore be aned to that extent. As the penalty has been served, and it does not appear that any loss of good time was imposed, the matter need not be remitted for a redetermination of the penalty (see Matter of Hobson v. Prack, 127 A.D.3d 1370, 1371, 4 N.Y.S.3d 560 [2015] ).
As to the remaining charges, the misbehavior report and the hearing testimony, including petitioner's admissions, constitute substantial evidence of his guilt (see Matter of Garcia v. Garner, 122 A.D.3d 988, 989, 995 N.Y.S.2d 829 [2014] ; Matter
of Clark v. Fischer, 114 A.D.3d 1116, 1116, 981 N.Y.S.2d 187 [2014] ). Petitioner alleges that he was unable to comply with the order because his arm and shoulder were sore due to a recent tetanus shot and that lying flat on the ground was too painful. There is no medical evidence in the record supporting his contention, however, and, under such circumstances, petitioner's explanation presented a credibility issue for the Hearing Officer to resolve (see Matter of Smith v. Annucci, 126 A.D.3d 1198, 1199, 3 N.Y.S.3d 636 [2015] ; Matter of Redmond v. Fischer, 116 A.D.3d 1304, 1304, 983 N.Y.S.2d 907 [2014] ). Finally, there is no support in the record for petitioner's contention that the Hearing Officer was biased or that he was otherwise denied a fair hearing (see Matter of Hand v. Greene, 118 A.D.3d 1245, 1246, 989 N.Y.S.2d 151 [2014] ; Matter of Collins v. Fischer, 109 A.D.3d 1040, 1040, 971 N.Y.S.2d 370 [2013], lv. dismissed 23 N.Y.3d 954, 988 N.Y.S.2d 123, 11 N.E.3d 197 [2014] ). Petitioner's remaining contentions, to the extent that they are properly before us, have been examined and found to be without merit.
ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of interfering with an employee; petition granted to that extent and the Commissioner of Corrections and Community Supervision is directed to expunge all references to this charge from petitioner's institutional record; and, as so modified, confirmed.
LAHTINEN, J.P., GARRY, EGAN JR., LYNCH and MULVEY, JJ., concur.