Opinion
532917
04-21-2022
In the Matter of Christopher HARRELL, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, et al., Respondents.
Christopher Harrell, Napanoch, petitioner pro se. Letitia James, Attorney General, Albany (Owen Demuth of counsel), for respondents.
Christopher Harrell, Napanoch, petitioner pro se.
Letitia James, Attorney General, Albany (Owen Demuth of counsel), for respondents.
Before: Egan Jr., J.P., Pritzker, Reynolds Fitzgerald, Colangelo and McShan, JJ.
MEMORANDUM AND JUDGMENT Proceeding pursuant to CPLR article 78 (transferred to thisCourt by order of the Supreme Court, entered in Albany County) to review a determination of respondent Commissioner of Corrections and Community Supervision finding petitioner guilty of violating a prison disciplinary rule.
Petitioner was charged in a misbehavior report with violating facility visiting procedures. Following a tier III disciplinary hearing, petitioner was found guilty of the charge and a penalty was imposed. Upon administrative review, the determination was affirmed, prompting petitioner to commence this CPLR article 78 proceeding to challenge the determination of guilt.
We confirm. The misbehavior report and testimony of the authoring correction officer constitute substantial evidence to support the finding of guilt (see Matter of Bond v. Annucci, 197 A.D.3d 1496, 1497, 154 N.Y.S.3d 161 [2021] ; Matter of Beltre v. Rodriguez, 185 A.D.3d 1370, 1370, 126 N.Y.S.3d 423 [2020] ; Matter of Dunbar v. Annucci, 173 A.D.3d 1598, 1599, 101 N.Y.S.3d 658 [2019] ). Contrary to petitioner's assertion, the video of the incident is inconclusive, as the view of petitioner and his visitor is obstructed. Although petitioner and his visitor denied that the underlying conduct occurred and petitioner asserted that the misbehavior report was written in retaliation for a prior encounter between petitioner and the authoring correction officer, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Martin v. Rodriguez, 171 A.D.3d 1322, 1323, 95 N.Y.S.3d 909 [2019] ; Matter of Nova v. Kirkpatrick, 160 A.D.3d 1326, 1326–1327, 75 N.Y.S.3d 346 [2018] ; Matter of Harriott v. Koenigsmann, 149 A.D.3d 1440, 1441, 53 N.Y.S.3d 401 [2017] ).
Petitioner's procedural objections also are unpersuasive. Although petitioner raised certain objections to the employee assistance provided prior to the disciplinary hearing, the hearing transcript reveals that the Hearing Officer secured, among other things, the testimony of petitioner's requested witnesses and the relevant video. As such, we are satisfied that whatever deficiencies may have existed in the assistance provided were cured during the course of the hearing (see Matter of Alston v. Annucci, 153 A.D.3d 981, 983, 59 N.Y.S.3d 850 [2017] ; Matter of Pricher v. Annucci, 137 A.D.3d 1406, 1407, 27 N.Y.S.3d 710 [2016] ). Finally, we reject petitioner's claim that the Hearing Officer was biased, "as the record reflects that the determination of guilt flowed from the evidence presented and not from any alleged bias on the part of the Hearing Officer" ( Matter of DeJesus v. Mayes, 196 A.D.3d 992, 993, 148 N.Y.S.3d 406 [2021] ; see Matter of Bellamy v. Noeth, 195 A.D.3d 1289, 1290, 145 N.Y.S.3d 875 [2021] ). Petitioner's remaining arguments, to the extent not expressly addressed, have been examined and found to be lacking in merit.
Egan Jr., J.P., Pritzker, Reynolds Fitzgerald, Colangelo and McShan, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.