Opinion
529594
04-23-2020
In the Matter of Robert HAIGLER, Petitioner, v. Lynn J. LILLEY, as Superintendent of Woodbourne Correctional Facility, Respondent.
Robert Haigler, Woodbourne, petitioner pro se. Letitia James, Attorney General, Albany (Victor Paladino of counsel), for respondent.
Robert Haigler, Woodbourne, petitioner pro se.
Letitia James, Attorney General, Albany (Victor Paladino of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Devine, Reynolds Fitzgerald and Colangelo, JJ.
MEMORANDUM AND JUDGMENT
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Sullivan County) to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.
While en route to breakfast in the presence of other inmates, petitioner, within a foot of a correction officer, engaged in a verbal altercation with that officer and disregarded the officer's initial directives to lower his voice and lock in. As a result of this incident, petitioner was charged in a misbehavior report with interfering with an employee and creating a disturbance. Following a tier II disciplinary hearing, petitioner was found guilty as charged, and a penalty was imposed. The determination was upheld on administrative appeal, and petitioner commenced this CPLR article 78 proceeding.
Initially, the Attorney General concedes, and we agree, that substantial evidence does not support that part of the determination finding petitioner guilty of interfering with an employee. Accordingly, we annul that part of the determination, and, given that petitioner has already served the penalty, which did not include a loss of good time, the matter need not be remitted for a redetermination thereof (see Matter of Parker v. Annucci, 175 A.D.3d 1682, 1682–1683, 108 N.Y.S.3d 225 [2019] ; Matter of Genis v. New York State Dept. of Correctional Servs., 80 A.D.3d 1032, 1032, 915 N.Y.S.2d 387 [2011] ; Matter of Valentino v. Bezio, 72 A.D.3d 1376, 1376, 901 N.Y.S.2d 726 [2010] ).
As to the remaining charge of creating a disturbance, the misbehavior report and hearing testimony provide substantial evidence to support the determination of guilt (see Matter of Frye v. Commissioner of the Dept. of Corr. & Community Supervision, 175 A.D.3d 1690, 1690, 106 N.Y.S.3d 642 [2019] ; Matter of Green v. Kirkpatrick, 165 A.D.3d 1375, 1376, 86 N.Y.S.3d 228 [2018], lv denied 32 N.Y.3d 919, 100 N.Y.S.3d 217, 123 N.E.3d 876 [2019] ; Matter of Hale v. Selsky, 57 A.D.3d 1136, 1137, 871 N.Y.S.2d 426 [2008], lv dismissed 12 N.Y.3d 776, 879 N.Y.S.2d 33, 906 N.E.2d 1066 [2009] ). Petitioner's testimony that the misbehavior report was fabricated presented a credibility issue for the Hearing Officer to resolve (see Matter of Walker v. Yelich, 170 A.D.3d 1358, 1360, 95 N.Y.S.3d 648 [2019] ; Matter of Canzater–Smith v. Venettozzi, 150 A.D.3d 1518, 1518–1519, 54 N.Y.S.3d 223 [2017] ).
Turning to petitioner's procedural contentions, we reject petitioner's argument that he was denied his right to call an inmate witness at the hearing. The Hearing Officer properly determined that the inmate witness, whose testimony would have been redundant, was unavailable to testify (see Matter of Harris v. Annucci, 145 A.D.3d 1293, 1294, 44 N.Y.S.3d 240 [2016] ; Matter of Osborne v. Venettozzi, 141 A.D.3d 990, 991, 34 N.Y.S.3d 916 [2016] ). Finally, contrary to petitioner's claim that the Hearing Officer was biased, the record reflects that the hearing was conducted in a fair, deliberative and impartial manner, and we find that the determination of guilt flowed from the substantial evidence adduced at the hearing rather than from any alleged bias (see Matter of Woodward v. Annucci, 175 A.D.3d 785, 787, 105 N.Y.S.3d 724 [2019] ; Matter of Nelson v. Annucci, 172 A.D.3d 1806, 1807, 100 N.Y.S.3d 784 [2019] ). To the extent that petitioner's remaining contentions are properly before us, we have reviewed them and find them to be without merit.
Garry, P.J., Egan Jr., Devine, Reynolds Fitzgerald and Colangelo, JJ., concur.
ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of interfering with an employee; petition granted to that extent and respondent is directed to expunge all references to this charge from petitioner's institutional record; and, as so modified, confirmed.