Opinion
787 TP 23-00818
11-17-2023
In the Matter of Charles BLANCHARD, Petitioner, v. Anthony ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent.
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (NORMAN P. EFFMAN OF COUNSEL), FOR PETITIONER. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KEVIN C. HU OF COUNSEL), FOR RESPONDENT.
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (NORMAN P. EFFMAN OF COUNSEL), FOR PETITIONER.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KEVIN C. HU OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, MONTOUR, GREENWOOD, AND DELCONTE, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the determination is unanimously modified on the law and the petition is granted in part by annulling that part of the determination finding that petitioner violated incarcerated individual rule 107.10 ( 7 NYCRR 270.2 [B] [8] [i]) and as modified the determination is confirmed without costs and respondent is directed to expunge from petitioner's institutional record all references to the violation of that incarcerated individual rule.
Memorandum: Petitioner commenced this CPLR article 78 proceeding, transferred to this Court pursuant to CPLR 7804 (g), seeking to annul the determination, following a tier II disciplinary hearing, that he violated incarcerated individual rules 106.10 ( 7 NYCRR 270.2 [B] [7] [i] [refusing a direct order]), 107.10 ( 7 NYCRR 270.2 [B] [8] [i] [interference with employee]) and 107.11 ( 7 NYCRR 270.2 [B] [8] [ii] [harassment]). As respondent correctly concedes, the determination that petitioner violated incarcerated individual rule 107.10 is not supported by substantial evidence. We therefore modify the determination by granting the petition in part and annulling the part of the determination finding that petitioner violated rule 107.10, and we direct respondent to expunge from petitioner's institutional record all references thereto (see generally Matter of Johnson v. Eckert , 197 A.D.3d 1011, 1012, 150 N.Y.S.3d 671 [4th Dept. 2021] ; Matter of Washington v. Annucci , 150 A.D.3d 1700, 1700-1701, 53 N.Y.S.3d 451 [4th Dept. 2017] ). Inasmuch as petitioner has already served the penalty and there was no recommended loss of good time, there is no need to remit the matter to respondent for reconsideration of the penalty (see Johnson , 197 A.D.3d at 1012, 150 N.Y.S.3d 671 ; Washington , 150 A.D.3d at 1701, 53 N.Y.S.3d 451 ).
Contrary to petitioner's contention, the misbehavior report and hearing testimony constitute substantial evidence supporting the determination that he violated rules 106.10 and 107.11 (see generally Matter of Thomas v. Annucci , 193 A.D.3d 1356, 1357, 143 N.Y.S.3d 262 [4th Dept. 2021] ; Matter of Williams v. Annucci , 162 A.D.3d 1530, 1531, 78 N.Y.S.3d 838 [4th Dept. 2018] ). Any conflicting testimony from petitioner and the other incarcerated individuals merely presented credibility issues for the hearing officer to resolve (see Matter of Foster v. Coughlin , 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 [1990] ). Finally, petitioner contends that incarcerated individual rule 107.11 cannot constitutionally prohibit the use of obscene language directed at correctional staff. That same contention, however, was considered and rejected by this Court in ( Matter of Nicholas v. Herbert , 195 A.D.2d 1083, 1084, 600 N.Y.S.2d 545 [4th Dept. 1993], appeal dismissed & lv denied 82 N.Y.2d 821, 605 N.Y.S.2d 2, 625 N.E.2d 588 [1993] ).