Opinion
526021
03-07-2019
In the Matter of Albert HARRIOTT, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, et al., Respondents.
Albert Harriott, Malone, petitioner pro se. Letitia James, Attorney General, Albany (Martin Hotvet of counsel), for respondent.
Albert Harriott, Malone, petitioner pro se.
Letitia James, Attorney General, Albany (Martin Hotvet of counsel), for respondent.
Before: Garry, P.J., Clark, Mulvey, Aarons and Rumsey, JJ.
MEMORANDUM AND JUDGMENT
Garry, P.J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review three determinations of respondents finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged on separate occasions in three misbehavior reports with violating various prison disciplinary rules. First, a January 2017 incident led to a tier III hearing held in March 2017, in which petitioner was found guilty of assaulting staff, engaging in violent conduct, refusing a direct order and violating frisk procedures. Next, a March 2017 incident led to a tier II disciplinary hearing in April 2017, in which petitioner was found guilty of violating various prison disciplinary rules. Finally, a tier III disciplinary rehearing was held in May 2017 relative to a September 2015 incident, as ordered by this Court ( Matter of Harriott v. Koenigsmann, 149 A.D.3d 1440, 1441–1443, 53 N.Y.S.3d 401 [2017] ). Following this rehearing, petitioner was found guilty of several violations, including creating a disturbance and refusing a direct order, and other charges were dismissed. Each of the three determinations were upheld upon separate administrative reviews, with the March 2017 determination modified as to the penalty. This CPLR article 78 proceeding ensued challenging all three determinations.
Initially, the Attorney General concedes that petitioner was improperly denied a relevant witness in the April 2017 tier II hearing, and we thus annul this determination. In light of the Hearing Officer's outright denial of — and failure to obtain testimony from — the requested witness responsible for creating and viewing the facility's videos, together with the Hearing Officer's failure to include in the record the documentation stating whether a video of the incident was unavailable, we further conclude that expungement, rather than remittal, is the proper remedy (see Matter of Rivera v. Prack, 122 A.D.3d 1226, 1227, 995 N.Y.S.2d 862 [2014] ; compare Matter of Cordero v. Rodriguez, 156 A.D.3d 979, 980, 64 N.Y.S.3d 616 [2017] ).
Turning to the March 2017 determination, the misbehavior report and hearing testimony, together with the confidential documents considered by the Hearing Officer in camera, provide substantial evidence to support the finding of guilt (see Matter of Ocasio v. Bullis, 162 A.D.3d 1424, 1424, 80 N.Y.S.3d 505 [2018] ; Matter of Heyliger v. Kirkpatrick, 153 A.D.3d 989, 990, 56 N.Y.S.3d 910 [2017] ; Matter of Davis v. Lempke, 148 A.D.3d 1366, 1367, 48 N.Y.S.3d 630 [2017] ). Petitioner's contentions that he was assaulted by one of the correction officers involved in the incident and that the misbehavior report was fabricated and written in retaliation for his prior grievances and a lawsuit that he had commenced against members of the Department of Corrections and Community Supervision presented credibility issues for the Hearing Officer to resolve (see Matter of Ocasio v. Bullis, 162 A.D.3d at 1425, 80 N.Y.S.3d 505 ; Matter of Heyliger v. Kirkpatrick, 153 A.D.3d at 990, 56 N.Y.S.3d 910 ; Matter of Girard v. Annucci, 141 A.D.3d 1065, 1066, 36 N.Y.S.3d 321 [2016], appeal dismissed and lv. denied 29 N.Y.3d 929, 50 N.Y.S.3d 33, 72 N.E.3d 568 [2017] ).
As to petitioner's procedural contentions regarding the March 2017 determination, we reject his claim that he was denied the right to call any material and relevant witnesses. Both correction officers who were involved in and witnessed the incident testified at the hearing, and petitioner failed to articulate how any other of his requested witnesses who did not testify had firsthand knowledge of the incident or would have provided testimony relevant to the charges or to his defense (see Matter of Covington v. Annucci, 160 A.D.3d 1333, 1334, 75 N.Y.S.3d 340 [2018], lv denied 32 N.Y.3d 903, 2018 WL 4354733 [2018] ; Matter of Baez v. Venettozzi, 155 A.D.3d 1231, 1232, 64 N.Y.S.3d 735 [2017] ; Matter of Aguirre v. Fischer, 111 A.D.3d 1219, 1220, 975 N.Y.S.2d 814 [2013] ). Moreover, the Hearing Officer made reasonable, albeit unsuccessful, efforts to identify certain correction officers who responded to the incident (see Matter of McClough v. Fischer, 118 A.D.3d 1228, 1229, 987 N.Y.S.2d 633 [2014] ; Matter of Stephens v. Lee, 115 A.D.3d 964, 964, 982 N.Y.S.2d 537 [2014] ). Further, we find no error in the Hearing Officer's refusal to recall the correction officers who testified for additional testimony, as petitioner had a substantial opportunity at the hearing to question them and could not articulate how the additional testimony that he sought to solicit would not be redundant (see Matter of Bartello v. Annucci, 142 A.D.3d 1194, 1194–1195, 37 N.Y.S.3d 463 [2016] ; Matter of Huggins v. Goord, 28 A.D.3d 891, 892, 813 N.Y.S.2d 250 [2006] ). Petitioner's contention that he was improperly denied the right to call an inmate witness is belied by the record, as the requested inmate witness executed a refusal form noting the reason for not wanting to testify, and the Hearing Officer read that form to petitioner at the hearing. No further inquiry by the Hearing Officer was required (see Matter of Cortorreal v. Annucci, 28 N.Y.3d 54, 59–60, 41 N.Y.S.3d 723, 64 N.E.3d 952 [2016] ; Matter of Weston v. Annucci, 153 A.D.3d 1537, 1537, 62 N.Y.S.3d 202 [2017] ). Further, petitioner's claim that he was improperly denied documentary evidence is unavailing, as the record establishes that he received those documents that were relevant and available (see e.g. Matter of Funches v. State of New York Dept. of Corr. & Community Supervision, 163 A.D.3d 1390, 1391, 80 N.Y.S.3d 742 [2018], lv dismissed 32 N.Y.3d 1140, 92 N.Y.S.3d 177, 116 N.E.3d 661 [2019] ).
Finally, to the extent that petitioner argues that the May 2017 rehearing was improper because this Court should have ordered expungement of the subject charges rather than a rehearing (see Matter of Harriott v. Koenigsmann, 149 A.D.3d at 1442, 53 N.Y.S.3d 401 ), his challenge amounts to an impermissible collateral attack on this Court's prior memorandum and judgment (cf. Citizens for St. Patrick's v. Saint Patrick's Church of W. Troy, 117 A.D.3d 1213, 1214, 985 N.Y.S.2d 743 [2014] ; Robert v. Stephanie R. Cooper, P.C., 114 A.D.3d 456, 458, 979 N.Y.S.2d 585 [2014] ). The proper procedure would have been to file a motion for leave to reargue pursuant to CPLR 2221(d)(2) (see generally Matter of Karnazes, 133 A.D.3d 1027, 1027–1028, 18 N.Y.S.3d 898 [2015], appeal dismissed 27 N.Y.3d 974, 31 N.Y.S.3d 450, 50 N.E.3d 917 [2016] ; Adderly v. State of New York, 35 A.D.3d 1043, 1043–1044, 825 N.Y.S.2d 384 [2006] ). Petitioner's remaining claims, including his generalized Freedom of Information Law requests (see Public Officers Law art 6), are either not properly before us (see Matter of Gomez v. Fischer, 74 A.D.3d 1399, 1402, 902 N.Y.S.2d 212 [2010], lv dismissed 15 N.Y.3d 858, 909 N.Y.S.2d 688, 936 N.E.2d 454 [2010] ; see also Matter of Carter v. Annucci, 166 A.D.3d 1189, 1190, 87 N.Y.S.3d 719 [2018] ) or lack merit.
Clark, Mulvey, Aarons and Rumsey, JJ., concur.
ADJUDGED that the April 24, 2017 tier II determination is annulled, without costs, petition granted to that extent, and respondent Superintendent of Clinton Correctional Facility is directed to expunge all references thereto from petitioner's institutional record.
ADJUDGED that the March 17, 2017 and May 16, 2017 determinations are confirmed, without costs, and petition dismissed to that extent.