Opinion
507 CA 22-01093
06-30-2023
In the Matter of Rondue GENTRY, Petitioner-Appellant, v. Anthony ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent-Respondent.
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER-APPELLANT. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (SARAH L. ROSENBLUTH OF COUNSEL), FOR RESPONDENT-RESPONDENT.
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER-APPELLANT.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (SARAH L. ROSENBLUTH OF COUNSEL), FOR RESPONDENT-RESPONDENT.
PRESENT: LINDLEY, J.P., CURRAN, MONTOUR, AND OGDEN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously vacated, the determination is confirmed without costs and the petition is dismissed.
Memorandum: In this proceeding pursuant to CPLR article 78, petitioner seeks to annul the determination, following a tier III disciplinary hearing, that he violated certain inmate rules. Petitioner appeals from a judgment that dismissed the petition.
We note at the outset that, because the petition raises the issue whether the determination following an evidentiary hearing is supported by substantial evidence, Supreme Court should have transferred the proceeding to this Court (see CPLR 7804 [g] ). We now consider the matter de novo, as if it had been properly transferred to us (see Matter of Medina v. Graham , 71 A.D.3d 1598, 1598, 896 N.Y.S.2d 920 [4th Dept. 2010] ; Matter of Hosmer v. New York State Off. of Children & Family Servs. , 289 A.D.2d 1042, 1042, 735 N.Y.S.2d 289 [4th Dept. 2001] ).
Petitioner contends that the determination was not supported by substantial evidence and that he was denied a fair hearing because the Hearing Officer failed to call a retired sergeant and failed to obtain certain video footage of the underlying events. Contrary to petitioner's contention, the determination that petitioner violated inmate rules 113.10 ( 7 NYCRR 270.2 [B] [14] [i]), 113.23 ( 7 NYCRR 270.2 [B] [14] [xiii]), and 114.10 ( 7 NYCRR 270.2 [B] [15] [i]) is supported by substantial evidence (see generally People ex rel. Vega v. Smith , 66 N.Y.2d 130, 140, 495 N.Y.S.2d 332, 485 N.E.2d 997 [1985] ). Although petitioner contends that the witnesses’ testimony was inconsistent, any inconsistencies in the testimony "created credibility issues for the Hearing Officer to resolve" ( Matter of Sherman v. Annucci , 142 A.D.3d 1196, 1197, 37 N.Y.S.3d 635 [3d Dept. 2016] ).
Moreover, we conclude that the Hearing Officer did not violate petitioner's right to call witnesses. The Hearing Officer "made a meaningful effort to locate and produce" the retired sergeant whom petitioner requested ( Matter of Davies v. Johnson , 203 A.D.2d 970, 970, 612 N.Y.S.2d 1018 [4th Dept. 1994] ; see Sherman , 142 A.D.3d at 1197, 37 N.Y.S.3d 635 ).
Finally, we reject petitioner's contention that the Hearing Officer improperly denied petitioner access to one of the video recordings of the underlying events. We note that the Hearing Officer "requested the recording and was advised by facility staff that the video did not exist" ( Matter of Wimberly v. Annucci , 185 A.D.3d 1364, 1365, 126 N.Y.S.3d 432 [3d Dept. 2020], lv denied 36 N.Y.3d 903, 2020 WL 7393392 [2020] ).
We therefore vacate the judgment, confirm the determination, and dismiss the petition.