Opinion
07-06-2017
In the Matter of Thomas WILLIAMS, Petitioner, v. Michael KIRKPATRICK, as Superintendent of Clinton Correctional Facility, Respondent.
Thomas Williams, Dannemora, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondent.
Thomas Williams, Dannemora, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Clinton County) to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with interfering with an employee, disobeying a direct order and harassment. The misbehavior report relates that, at sick call callouts, petitioner was observed by a correction officer screaming at the top of his lungs at one of the nurses. He failed to comply with the correction officer's orders to quiet down. Petitioner was then escorted back to his cell. During the incident, inmates were waiting to be seen for sick call callouts. Following a tier II disciplinary hearing, petitioner was found guilty of interfering with an employee and disobeying a direct order and not guilty of harassment. The determination was affirmed upon administrative appeal. This CPLR article 78 proceeding ensued.
We are unpersuaded by petitioner's contention that the determination of guilt, particularly with regard to interfering with an employee, is not supported by substantial evidence. Specifically, the misbehavior report and testimony from the nurse involved in the incident provide substantial evidence to support the determination (see Matter of Evans v. Goord, 41 A.D.3d 1127, 1127–1128, 840 N.Y.S.2d 173 [2007], lv. denied 9 N.Y.3d 813, 848 N.Y.S.2d 24, 878 N.E.2d 608 [2007] ; Matter of Goncalves v. Donnelly, 9 A.D.3d 721, 721, 779 N.Y.S.2d 842 [2004] ). Furthermore, "there was no requirement that the author of the misbehavior report testify absent a request from petitioner" (Matter of Tulloch v. Fischer, 90 A.D.3d 1370, 1371, 935 N.Y.S.2d 696 [2011] ; see Matter of Briggs v. Annucci, 145 A.D.3d 1301, 1302, 43 N.Y.S.3d 604 [2016] ). Petitioner's remaining contentions, including that the Hearing Officer was biased and did not adequately set forth the facts relied upon in reaching the determination of guilt (see Matter of Bekka v. Annucci, 137 A.D.3d 1446, 1447, 27 N.Y.S.3d 292 [2016] ), have been reviewed and found to be without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
GARRY, J.P., EGAN JR., ROSE, DEVINE and CLARK, JJ., concur.