Opinion
533956
07-28-2022
In the Matter of Jason BAXTER, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Jason Baxter, Romulus, petitioner pro se. Letitia James, Attorney General, Albany (Frank A. Brady of counsel), for respondent.
Jason Baxter, Romulus, petitioner pro se.
Letitia James, Attorney General, Albany (Frank A. Brady of counsel), for respondent.
Before: Clark, J.P., Aarons, Pritzker, Reynolds Fitzgerald and Ceresia, 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 was charged in a misbehavior report with refusing a direct order, interfering with an employee, violating frisk procedures and damaging state property. According to the misbehavior report, petitioner initially refused numerous direct orders to come out of his cell in order for a routine cell frisk to be performed. After petitioner complied, the frisk of his cell revealed destroyed state sheets and a damaged mattress – which items were photographed. At the ensuing tier III disciplinary hearing, the Hearing Officer found petitioner to be uncooperative and nonresponsive to his questions and, therefore, removed petitioner from the hearing. The hearing continued in petitioner's absence and the Hearing Officer ultimately found petitioner guilty of all charges. That determination was affirmed upon administrative appeal, and this CPLR article 78 proceeding ensued.
Contrary to petitioner's contention, substantial evidence in the form of the detailed misbehavior report and supporting documentary evidence support the determination of guilt (see Matter of Green v. Kirkpatrick, 167 A.D.3d 1138, 1139, 89 N.Y.S.3d 411 [2018], lv denied 32 N.Y.3d 919, 2019 WL 1407422 [2019] ; Matter of Thompson v. Kirkpatrick, 160 A.D.3d 1234, 1235, 71 N.Y.S.3d 910 [2018] ; Matter of Cruz v. Annucci, 149 A.D.3d 1446, 1447, 50 N.Y.S.3d 894 [2017] ). Petitioner's denial of the charges and assertion that the misbehavior report was fabricated presented credibility issues for the Hearing Officer to resolve (see Matter of Kennedy v. Annucci, 185 A.D.3d 1371, 1371–1372, 128 N.Y.S.3d 693 [2020] ).
Turning to petitioner's procedural contentions, we are unpersuaded that petitioner was denied employee assistance as the record reflects that petitioner refused, both before and at the commencement of the hearing, to choose from any of the available employee assistants (see Matter of Swinton v. Venettozzi, 164 A.D.3d 1584, 1585, 81 N.Y.S.3d 918 [2018] ; Matter of Lashway v. Fischer, 110 A.D.3d 1420, 1420–1421, 973 N.Y.S.2d 496 [2013] ). We further reject petitioner's contention that he was improperly removed from the disciplinary hearing. Petitioner, despite prior warnings, continued to be uncooperative and unresponsive to the Hearing Officer's questions, which interfered with the hearing process (see Matter of Alsaifullah v. Fischer, 118 A.D.3d 1239, 1240, 987 N.Y.S.2d 717 [2014], lv denied 24 N.Y.3d 906, 2014 WL 5368870 [2014] ; Matter of Madrigal v. Fischer, 108 A.D.3d 991, 991–992, 969 N.Y.S.2d 247 [2013] ; Matter of Blocker v. Fischer, 107 A.D.3d 1285, 1286, 967 N.Y.S.2d 525 [2013] ). Petitioner's remaining contentions, to the extent that they are properly before this Court, have been reviewed and found to be without merit.
Clark, J.P., Aarons, Pritzker, Reynolds Fitzgerald and Ceresia, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.