Opinion
519354
03-19-2015
In the Matter of Ruben MENDEZ, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Ruben Mendez, Auburn, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Ruben Mendez, Auburn, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
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 respondent which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with demonstration and violent conduct after an investigation yielded confidential information alleging that petitioner was one of the organizers of a three-day silent demonstration in the mess hall during meals, which protest was to escalate to work stoppages and violence against staff. Following a tier III disciplinary hearing, petitioner was found guilty as charged. The determination was affirmed upon administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding.
We confirm. The misbehavior report, testimony at the hearing and the confidential information that was independently assessed by the Hearing Officer provide substantial evidence to support the determination of guilt (see Matter of Rosa v. Fischer, 112 A.D.3d 1009, 1010, 976 N.Y.S.2d 314 [2013], lv. denied 22 N.Y.3d 864, 2014 WL 1243632 [2014] ; Matter of Ferguson v. Goord, 13 A.D.3d 949, 949, 787 N.Y.S.2d 442 [2004] ). Although petitioner relies on the fact that during the demonstration he was confined to his cell for meals due to a medical condition, such evidence is not dispositive as to whether he was involved in organizing the demonstration and, in any event, such testimony presented a credibility issue for the Hearing Officer to resolve (see Matter of Rosa v. Fischer, 112 A.D.3d at 1010, 976 N.Y.S.2d 314 ).
Petitioner's contention that he was improperly denied an unusual incident report is without merit, as the record establishes that no such document existed (see Matter of Morgan v. Goord, 10 A.D.3d 792, 793, 781 N.Y.S.2d 812 [2004] ). We also are unpersuaded by petitioner's assertion that he required the assistance of a Spanish interpreter. The record demonstrates, and testimony regarding his educational records confirms, that petitioner is sufficiently proficient in English to enable his meaningful participation in the hearing (see Matter of Encarnacion v. Goord, 19 A.D.3d 906, 907, 797 N.Y.S.2d 178 [2005] ). Petitioner's remaining contention regarding the adequacy of his employee assistance is unpreserved for our review given his failure to raise the issue at the disciplinary hearing (see Matter of Robinson v. Prack, 119 A.D.3d 1309, 1309, 989 N.Y.S.2d 707 [2014] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
LAHTINEN, J.P., McCARTHY, LYNCH and DEVINE, JJ., concur.