Opinion
03-16-2017
In the Matter of Rasheem S. HARRIS, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Rasheem S. Harris, Newark, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of counsel), for respondent.
Rasheem S. Harris, Newark, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of counsel), for respondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.
An investigation revealed that petitioner, a prison inmate, had demanded payment from other inmates who wanted to use the facility's phone and threatened those who refused. Petitioner was accordingly charged in a misbehavior report with engaging in violent conduct, making threats and extortion. Following a tier III disciplinary hearing, petitioner was found guilty of the charges. That determination was upheld on administrative appeal, and this CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, hearing testimony, including the testimony from the sergeant who conducted the investigation and authored the misbehavior report, and the confidential testimony considered by the Hearing Officer in camera provide substantial evidence supporting the determination of guilt (see Matter of Al–Matin v. Prack, 131 A.D.3d 1293, 1293, 16 N.Y.S.3d 96 [2015], lv. denied 26 N.Y.3d 913, 2015 WL 8805369 [2015] ; Matter of Hayward v. Fischer, 101 A.D.3d 1308, 1309, 955 N.Y.S.2d 460 [2012] ). Any conflicts between that proof and the testimony of petitioner and several other inmate witnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of Ortiz v. Prack, 134 A.D.3d 1336, 1337, 21 N.Y.S.3d 497 [2015] ; Matter of Adams v. Fischer, 116 A.D.3d 1269, 1270, 983 N.Y.S.2d 746 [2014] ).
Turning to petitioner's procedural contentions, we find that the misbehavior report was sufficiently detailed to provide him with adequate notice of the charges so as to enable him to prepare a defense (see 7 NYCRR 251–3.1 [c][1], [4]; Matter of Austin v. Annucci, 145 A.D.3d 1263, 1264, 42 N.Y.S.3d 681 [2016] ; Matter of Bailey v. Annucci, 142 A.D.3d 1195, 1196, 37 N.Y.S.3d 633 [2016] ). To the extent that petitioner identified three "potential" inmate witnesses prior to the hearing and avers that neither the employee assistant nor the Hearing Officer obtained the reasons for why they refused to testify (see generally 7 NYCRR 251–4.2 ; Matter of Rivera v.
Prack, 122 A.D.3d 1226, 1227, 995 N.Y.S.2d 862 [2014] ), petitioner neither requested at the hearing that these witnesses testify nor demanded further inquiry into their absence (see Matter of Gomez v. New York State Dept. of Corr. & Community Supervision, 122 A.D.3d 1226, 1228, 46 N.Y.S.3d 296, 297 [2017]; Matter of Torres v. Annucci, 144 A.D.3d 1289, 1289, 40 N.Y.S.3d 673 [2016] ; cf. Matter of Henry v. Fischer, 28 N.Y.3d 1135, 1138, 46 N.Y.S.3d 491, 68 N.E.3d 1221 [2016] ). We have considered petitioner's remaining contentions and find them to be unavailing.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
LYNCH, J.P., ROSE, DEVINE, MULVEY and AARONS, JJ., concur.