Opinion
2015-02-5
In the Matter of Peter LOPEZ, Petitioner, v. NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent.
Peter Lopez, Napanoch, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Peter Lopez, Napanoch, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: PETERS, P.J., ROSE, EGAN JR. and DEVINE, JJ.
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 the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.
During the course of an investigation in which confidential information was received, correction officials discovered that petitioner had perpetrated an assault upon another inmate causing him injuries. As a result, he was charged in a misbehavior report with assaulting an inmate, creating a disturbance, engaging in violent conduct and possessing a weapon. He was found guilty of the charges following a tier III disciplinary hearing and the determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
Initially, respondent concedes and we agree that substantial evidence does not support that part of the determination finding petitioner guilty of creating a disturbance ( see Matter of Walker v. Fischer, 108 A.D.3d 999, 1000, 969 N.Y.S.2d 256 [2013] ). We further find, upon a thorough review of the record, that substantial evidence does not support that part of the determination finding petitioner guilty of possessing a weapon inasmuch as no weapon was ever recovered, no one witnessed petitioner in possession of a weapon and the medical evidence on this issue is not compelling ( compare Matter of Fernandez v. Fischer, 110 A.D.3d 1422, 1422–1423, 973 N.Y.S.2d 886 [2012] ). Therefore, the determination of guilt with respect to these two charges must be annulled. Inasmuch as a loss of good time was imposed, the matter must be remitted for a redetermination of the penalty on the remaining charges, which we find to be supported by substantial evidence ( see Matter of Dizak v. Prack, 120 A.D.3d 1472, 1473, 992 N.Y.S.2d 373 [2014]; Matter of Haigler v. Fischer, 119 A.D.3d 1261, 1262, 989 N.Y.S.2d 698 [2014], lv. denied24 N.Y.3d 908, 2014 WL 5437354 [2014] ).
The misbehavior report and related documentation, together with the testimony presented both at the hearing and confidentially, provide substantial evidence supporting that part of the determination finding petitioner guilty of assaulting an inmate and engaging in violent conduct ( see Matter of Espinal v. Fischer, 114 A.D.3d 978, 978–979, 979 N.Y.S.2d 864 [2014]; Matter of Williams v. Fischer, 111 A.D.3d 1001, 1001, 974 N.Y.S.2d 304 [2013] ). Although petitioner denied any misconduct and claimed to be a victim of retaliation, this presented a credibility issue for the Hearing Officer to resolve ( see Matter of Clark v. Fischer, 120 A.D.3d 1468, 1469, 991 N.Y.S.2d 911 [2014], lv. denied24 N.Y.3d 912, 2015 WL 94651 [Jan. 8, 2015]; Matter of Lashway v. Fischer, 110 A.D.3d 1420, 1420, 973 N.Y.S.2d 496 [2013] ). Moreover, there is nothing to indicate that the Hearing Officer was involved in the investigation and should not have presided over the hearing or that he was biased ( see Matter of Olutosin v. Fischer, 98 A.D.3d 1178, 1179, 950 N.Y.S.2d 824 [2012], lv. denied20 N.Y.3d 855, 2013 WL 69145 [2013]; see also7 NYCRR 254.1). Petitioner's remaining contentions, including his claims that he was improperly denied witnesses as well as certain documentary evidence, have been considered and are lacking in merit.
ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of creating a disturbance and possessing a weapon; petition granted to that extent, the Commissioner of Corrections and Community Supervision is directed to expunge all references to these charges from petitioner's institutional record, and matter remitted to the Commissioner of Corrections and Community Supervision for an administrative redetermination of the penalty on the remaining violations; and, as so modified, confirmed.