Opinion
706 TP 18–00048
06-08-2018
In the Matter of Justin CORDOVA, Petitioner, v. Anthony ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent.
WYOMING COUNTY–ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER. BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF COUNSEL), FOR RESPONDENT.
WYOMING COUNTY–ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER.
BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a tier III hearing, that petitioner violated various inmate rules, including assault on an inmate in violation of inmate rule 100.10 ( 7 NYCRR 270.2 [B][1][i] ). Contrary to petitioner's contention, the determination is supported by substantial evidence (see generally People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997 [1985] ), i.e., the misbehavior report and the hearing testimony of its author, which established that petitioner approached the victim from behind and cut him and that, immediately after the incident, the victim identified petitioner as the assailant (see generally Matter of Foster v. Coughlin , 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 [1990] ). The confidential testimony heard by the Hearing Officer provided a sufficient basis upon which to assess the credibility of the statements made by the victim to the author of the report (see Matter of Porter v. Annucci , 156 A.D.3d 1430, 1430–1431, 65 N.Y.S.3d 884 [4th Dept. 2017] ). Petitioner's denials raised, at most, an issue of credibility for resolution by the Hearing Officer (see Foster , 76 N.Y.2d at 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 ).