Opinion
04-28-2017
In The Matter of Rasheen MILLS, Petitioner, v. Anthony ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent.
Rasheen Mills, Petitioner Pro Se. Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of Counsel), for Respondent.
Rasheen Mills, Petitioner Pro Se.
Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of Counsel), for Respondent.
PRESENT: CENTRA, J.P., LINDLEY, DeJOSEPH, NEMOYER, AND SCUDDER, JJ.
MEMORANDUM:
Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a tier III disciplinary hearing, that he violated various inmate rules, including inmate rules 100.13 (7 NYCRR 270.2 [B][1][iv] [fighting] ) and 113.10 (7 NYCRR 270.2 [B][14][i] [weapon possession] ). Contrary to petitioner's contention, substantial evidence, including the testimony of correction officers who witnessed the fight, supports the determination that he violated the inmate rules (see Matter of Gray v. Annucci, 144 A.D.3d 1613, 1614, 41 N.Y.S.3d 186, lv. denied 29 N.Y.3d 901, 2017 WL 1095335 [Mar. 23, 2017] ; see generally Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 ). Although petitioner was not the initial aggressor, he continued to fight when ordered to stop and used a weapon against the other inmate (see Matter of Gloster v. Goord, 278 A.D.2d 568, 568–569, 717 N.Y.S.2d 411, appeal dismissed 96 N.Y.2d 825, 729 N.Y.S.2d 444, 754 N.E.2d 204 ; Matter of Anderson v. Goord, 262 A.D.2d 896, 896–897, 694 N.Y.S.2d 776 ). Petitioner's testimony to the contrary merely raised an issue of credibility for the Hearing Officer to resolve (see Foster, 76 N.Y.2d at 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 ). Contrary to petitioner's further contention, the chain of custody for the weapon was "adequately established" (Matter of Martinez v. Annucci, 134 A.D.3d 1380, 1381, 21 N.Y.S.3d 771 ). Petitioner's contention that he was denied the right to call certain witnesses is without merit inasmuch as he failed to establish that those witnesses would have provided relevant, noncumulative testimony (see Matter of Medina v. Fischer, 137 A.D.3d 1584, 1585–1586, 27 N.Y.S.3d 752 ; Matter of Jackson v. Annucci, 122 A.D.3d 1288, 1288–1289, 994 N.Y.S.2d 755 ).
Petitioner contends that the hearing was not timely completed (see 7 NYCRR 251–5.1 [b] ). The record establishes, however, that the hearing was extended upon proper authorization (see id.; Matter of Comfort v. Irvin, 197 A.D.2d 907, 907–908, 602 N.Y.S.2d 264, lv. denied 82 N.Y.2d 662, 610 N.Y.S.2d 149, 632 N.E.2d 459 ). In any event, compliance with that regulation "is directory only and there is no indication of any substantive prejudice to petitioner resulting from the delay" (Comfort, 197 A.D.2d at 908, 602 N.Y.S.2d 264 ; see Matter of Dash v. Goord, 255 A.D.2d 978, 978–979, 682 N.Y.S.2d 322 ). We reject petitioner's further contention that the Hearing Officer was biased (see Matter of Colon v. Fischer, 83 A.D.3d 1500, 1501–1502, 921 N.Y.S.2d 441 ). We have reviewed petitioner's remaining contentions and conclude that they are without merit.
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.