Opinion
2015-08-6
In the Matter of Leo A. MARINO, Petitioner, v. Daniel MARTUSCELLO Jr., as Superintendent of Coxsackie Correctional Facility, Respondent.
Leo A. Marino, Dannemora, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Leo A. Marino, Dannemora, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: LAHTINEN, J.P., EGAN JR., ROSE and LYNCH, JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Greene County) to review four determinations of respondent which found petitioner guilty of violating certain prison disciplinary rules.
Three different correction officers observed petitioner, on separate occasions, smoking a cigarette in his cell and each directed him to extinguish it. Each officer then prepared a misbehavior report charging petitioner with, among other things, smoking in an undesignated area and refusing a direct order. A fourth misbehavior report was prepared by a correction counselor after he received a letter—containing degrading and intimidating comments—that was written by petitioner in response to the counselor's denial of his Freedom of Information Law request ( see Public Officers Law art. 6). This misbehavior report charged petitioner with harassment, interfering with an employee and making threats.
Four separate tier II disciplinary hearings were subsequently conducted. At the conclusion of the first hearing, petitioner was found guilty of smoking and, after the second and third hearings, he was found guilty of smoking and refusing a direct order; all determinations were affirmed upon administrative appeal. After the fourth hearing, petitioner was found guilty of harassment, and this determination also was affirmed upon administrative appeal. Petitioner then commenced this CPLR article 78 proceeding challenging the four disciplinary determinations.
Initially, with respect to those portions of the second and third determinations finding petitioner guilty of refusing a direct order, respondent concedes and we agree that substantial evidence does not support petitioner's guilt and the determinations must be modified accordingly ( see Matter of Page v. Lee, 116 A.D.3d 1275, 1275, 983 N.Y.S.2d 747 [2014]; Matter of Pulecio v. Fischer, 109 A.D.3d 1068, 1069, 971 N.Y.S.2d 380 [2013], lv. denied22 N.Y.3d 858, 2014 WL 112692 [2014] ). Inasmuch as a loss of good time was not imposed and petitioner already has served the penalty, remittal for redetermination thereof is unnecessary ( see Matter of Page v. Lee, 116 A.D.3d at 1275, 983 N.Y.S.2d 747; Matter of Pulecio v. Fischer, 109 A.D.3d at 1069, 971 N.Y.S.2d 380). We reach a different conclusion, however, with respect to the three charges of smoking. The misbehavior reports, together with petitioner's testimony at the hearings, provide substantial evidence supporting petitioner's guilt of smoking on each of the occasions at issue ( see Matter of Goode v. Chappius, 118 A.D.3d 1225, 1226, 988 N.Y.S.2d 294 [2014]; Matter of Newman v. Department of Corr. Servs., 110 A.D.3d 1309, 1309–1310, 973 N.Y.S.2d 448 [2013] ).
As for the fourth disciplinary determination, the misbehavior report, together with the subject letter, which petitioner did not dispute writing, provide substantial evidence supporting petitioner's guilt of the charge of harassment ( see Matter of Greene v. Fischer, 107 A.D.3d 1271, 1271, 967 N.Y.S.2d 252 [2013]; Matter of Marhone v. LaValley, 107 A.D.3d 1186, 1187, 967 N.Y.S.2d 474 [2013] ). Petitioner's defense-that the misbehavior reports were brought against him in retaliation for his filing of grievances-presented a credibility issue for the Hearing Officer to resolve ( see Matter of Shepherd v. Commissioner of Corr. & Community Supervision, 123 A.D.3d 1283, 1283, 996 N.Y.S.2d 406 [2014]; Matter of Toliver v. New York State Commr. of Corr. & Community Supervision, 114 A.D.3d 987, 987, 979 N.Y.S.2d 866 [2014] ). In addition, we have reviewed each of the hearing transcripts and do not find that the Hearing Officers were biased or that the determinations at issue flowed from any alleged bias ( see Matter of Garcia v. Garner, 122 A.D.3d 988, 989, 995 N.Y.S.2d 829 [2014]; Matter of Brown v. Fischer, 120 A.D.3d 1517, 1517–1518, 992 N.Y.S.2d 463 [2014] ). Petitioner's remaining contentions have not been preserved for our review.
ADJUDGED that the determination dated September 10, 2013 finding petitioner guilty of smoking and the determination dated October 1, 2013 finding petitioner guilty of harassment are confirmed, without costs, and petition dismissed to that extent.
ADJUDGED that the determination dated September 10, 2013 finding petitioner guilty of smoking and refusing a direct order is modified, without costs, by annulling so much thereof as found petitioner guilty of refusing a direct order; 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.
ADJUDGED that the determination dated September 17, 2013 finding petitioner guilty of smoking and refusing a direct order is modified, without costs, by annulling so much thereof as found petitioner guilty of refusing a direct order; 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.