Opinion
2012-09-13
In the Matter of Anthony D. AMAKER, Petitioner, v. Norman BEZIO, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Anthony D. Amaker, Attica, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Anthony D. Amaker, Attica, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: PETERS, P.J., ROSE, SPAIN, KAVANAGH and GARRY, JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review two determinations of the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner commenced this CPLR article 78 proceeding challenging two tier III disciplinary determinations. The first misbehavior report charged violations of seven disciplinary rules arising from an argument between petitioner and correction officers about his right to wear his hair in dreadlocks, occurring as he was en route to attend religious services. The second misbehavior report was issued later on the same day, charging three rule violations arising from a further verbal confrontation between petitioner and a correction officer after being escorted back to his cell and ordered to lock in. In the first matter, petitioner was found guilty of six violations following a hearing. Upon his administrative appeal, four were upheld: demonstration, creating a disturbance, interference with an employee and disobeying a direct order. Following his hearing in the second matter, petitioner was found guilty of refusing a direct order, movement regulation violation and verbal harassment. All were upheld upon his administrative appeal.
We confirm. As to the first misbehavior report, the detailed report together with the testimony of its author and another correction officer present at the scene constitute substantial evidence supporting the determination of guilt ( see Matter of Carrasco v. Fischer, 96 A.D.3d 1315, 1316, 947 N.Y.S.2d 219 [2012];Matter of Gallagher v. New York State Dept. of Correctional Servs., 96 A.D.3d 1319, 1320, 947 N.Y.S.2d 224 [2012] ). Contrary to petitioner's argument, the record demonstrates that he was not denied his right to call relevant or material witnesses ( see Matter of White v. Fischer, 87 A.D.3d 1249, 1250, 930 N.Y.S.2d 306 [2011] ). Petitioner's claim that the misbehavior report was filed in retaliation or because of religious or racial bias posed a credibility issue for the Hearing Officer to resolve ( see Matter of White v. Fischer, 95 A.D.3d 1582, 1583, 943 N.Y.S.2d 924 [2012];Matter of Abbas v. Selsky, 22 A.D.3d 982, 983, 802 N.Y.S.2d 798 [2005] ). The fact that these issues were resolved adversely to petitioner does not, as he claims, establish bias ( see Matter of Cendales v. Goord, 305 A.D.2d 824, 825, 758 N.Y.S.2d 548 [2003] ). Though petitioner claims that the correction officers were violating the terms of a federal court preliminary injunction, he was not entitled to engage in demonstrations or other forms of self-help ( see Matter of Burgos v. Fischer, 90 A.D.3d 1403, 1404, 934 N.Y.S.2d 873 [2011] ), nor was he entitled on this basis to refuse to obey direct orders ( see Matter of Miller v. Goord, 2 A.D.3d 928, 930, 767 N.Y.S.2d 704 [2003];Matter of Tafari v. McGinnis, 307 A.D.2d 502, 503, 763 N.Y.S.2d 342 [2003] ).
In such circumstances, inmates must seek redress through other means, such as the grievance procedure ( see Matter of Davis v. Goord, 301 A.D.2d 1002, 1003, 753 N.Y.S.2d 409 [2003],lv. dismissed100 N.Y.2d 534, 762 N.Y.S.2d 875, 793 N.E.2d 412 [2003] ).
Upon review of the second misbehavior report and the testimony of the hearing in this second proceeding, we find the determination of guilt supported by substantial evidence ( see Matter of Walker v. Bezio, 96 A.D.3d 1268, 946 N.Y.S.2d 905 [2012] ). There is no record evidence supporting petitioner's claims that the Hearing Officer was biased against him and the report was filed for a retaliatory purpose. Finally, “[w]e find no error in the Hearing Officer's removal of petitioner from the hearing given his argumentative and disruptive behavior” (Matter of McKinney v. Fischer, 94 A.D.3d 1325, 1326, 942 N.Y.S.2d 696 [2012] ).
Petitioner's remaining contentions, including his claims that the extensions granted for completion of the disciplinary hearing relative to the first report were improper, have been examined and found to be unpersuasive.
ADJUDGED that the determinations are confirmed, without costs, and petition dismissed.