Opinion
No. 534661
03-30-2023
In the Matter of Anum Moore, Petitioner, v. Anthony J. Annucci, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Anum Moore, Beacon, petitioner pro se. Letitia James, Attorney General, Albany (Victor Paladino of counsel), for respondent.
Calendar Date February 10, 2023
Anum Moore, Beacon, petitioner pro se.
Letitia James, Attorney General, Albany (Victor Paladino of counsel), for respondent.
Before Clark, J.P., Aarons, Pritzker, Reynolds Fitzgerald and Ceresia, 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 respondent finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner, an incarcerated individual, was charged in a misbehavior report with refusing a direct order and violating facility visitation procedures. Following a tier III disciplinary hearing, petitioner was found guilty of the charges and a penalty was imposed. Upon administrative review, the penalty was modified but the determination of guilt was otherwise affirmed. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report and hearing testimony from the authoring correction officer provide substantial evidence to support the finding of guilt (see Matter of Harrell v Annucci, 204 A.D.3d 1268, 1269 [3d Dept 2022]; Matter of Mojica v Keyser, 203 A.D.3d 1344, 1344 [3d Dept 2022]; Matter of Hood v Fischer, 100 A.D.3d 1122, 1123 [3d Dept 2012]). Contrary to petitioner's assertions, the authoring correction officer's testimony and that of two other officers who did not observe petitioner engage in the charged conduct presented a credibility issue for the Hearing Officer to resolve (see Matter of Barzee v Venettozzi, 173 A.D.3d 1580, 1581 [3d Dept 2019]; Matter of Sunkes v Russo, 153 A.D.3d 994, 995 [3d Dept 2017]; Matter of Pena v Selsky, 53 A.D.3d 938, 939 [3d Dept 2008]). We are unpersuaded by petitioner's assertion that the Hearing Officer's conclusions in this regard are indicative of bias, "as the record reflects that the determination of guilt flowed from the evidence presented and not from any alleged bias on the part of the Hearing Officer" (Matter of DeJesus v Mayes, 196 A.D.3d 992, 993 [3d Dept 2021]; accord Matter of Harrell v Annucci, 204 A.D.3d at 1269). Petitioner's arguments pertaining to the availability or production of certain evidence, his unsuccessful attempts to call certain witnesses and his procedural challenge to the misbehavior report are unpreserved for our review as they were not raised at the administrative level (see Matter of Abdur-Rahman v Lilley, 210 A.D.3d 1163, 1163 [3d Dept 2022]; Matter of Watson v Werlau, 201 A.D.3d 1288, 1288 [3d Dept 2022]; Matter of Killimayer v Annucci, 199 A.D.3d 1151, 1152 [3d Dept 2021]). To the extent that petitioner's remaining contentions are properly before us, they have been examined and found to be without merit.
Clark, J.P., Aarons, Pritzker, Reynolds Fitzgerald and Ceresia, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.