Opinion
530266
04-23-2020
In the Matter of Isham MOORE, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Isham Moore, New York City, petitioner pro se. Letitia James, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Isham Moore, New York City, petitioner pro se.
Letitia James, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Mulvey, Devine and Reynolds Fitzgerald, JJ.
MEMORANDUM AND JUDGMENT
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, a prison inmate, was charged in a misbehavior report with fighting, engaging in violent conduct and creating a disturbance. According to the report, petitioner, while in the mess hall, was observed hitting another inmate in the upper back with a feed-up tray and then exchanging closed-fist punches. Several orders were given to petitioner and the other inmate to stop fighting before use of force was applied to stop the fight. Following a tier III disciplinary hearing, petitioner was found guilty as charged, and the determination was affirmed on administrative review. This CPLR article 78 proceeding ensued.
We confirm. Contrary to petitioner's contention, the misbehavior report and hearing testimony — as well as the confidential documentation submitted for in camera review, including video footage of the incident — provide substantial evidence to support the determination of guilt (see Matter of Barzee v. Venettozzi , 173 A.D.3d 1580, 1581, 102 N.Y.S.3d 808 [2019] ; Matter of Hart v. Rodriguez , 169 A.D.3d 1148, 1148–1149, 93 N.Y.S.3d 720 [2019], lv denied 33 N.Y.3d 910, 2019 WL 2623982 [2019] ; Matter of Jones v. Annucci , 166 A.D.3d 1174, 1175, 87 N.Y.S.3d 723 [2018] ; Matter of Funches v. State of New York Dept. of Corr. & Community Supervision , 163 A.D.3d 1390, 1391, 80 N.Y.S.3d 742 [2018], lv dismissed 32 N.Y.3d 1140, 92 N.Y.S.3d 177, 116 N.E.3d 661 [2019] ). Although the Hearing Officer credited petitioner's testimony that the other inmate instigated the altercation, and petitioner claimed that his involvement was strictly in self-defense, the Hearing Officer was entitled to credit evidence that petitioner's conduct exceeded that which was necessary to protect himself (see Matter of D'Antuono v. Graham , 160 A.D.3d 1430, 1430, 75 N.Y.S.3d 402 [2018] ; Matter of Lamage v. Fischer , 100 A.D.3d 1176, 1176, 953 N.Y.S.2d 736 [2012] ; Matter of O'Sullivan v. Fischer , 87 A.D.3d 1229, 1230, 930 N.Y.S.2d 296 [2011] ). To the extent that petitioner's remaining contentions are properly before us, they have been considered and found to be without merit.
Egan Jr., J.P., Lynch, Mulvey, Devine and Reynolds Fitzgerald, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.