Opinion
No. CV-23-0793
05-23-2024
In the Matter of Tyrone Peters, Petitioner, v. Anthony J. Annucci, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Tyrone Peters, Elmira, petitioner pro se. Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Calendar Date: April 19, 2024
Tyrone Peters, Elmira, petitioner pro se.
Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Before: Garry, P.J., Pritzker, Lynch, Ceresia and Mackey, 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 making threats and engaging in violent conduct. According to the misbehavior report, a fight broke out in the prison yard, where petitioner, amidst approximately 174 other incarcerated individuals, was observed by a correction officer yelling, "[c]ut them f***ing C.O.'s" and "[s]lice them f***ing C.O.'s." At the conclusion of the tier III disciplinary hearing that followed, petitioner was found guilty of the charges. The determination was upheld upon administrative review. This CPLR article 78 proceeding ensued, and we confirm.
As an initial matter, and "contrary to petitioner's contention, there is no indication that the transcript of the hearing was deliberately altered or that significant portions are missing such as to preclude meaningful review" (Matter of Tigner v Rodriguez, 196 A.D.3d 982, 982 [3d Dept 2021] [internal quotation marks and citations omitted]; see Matter of Thousand v New York State Dept. of Corr. & Community Supervision, 210 A.D.3d 1174, 1176 [3d Dept 2022]). Turning to the disciplinary determination, the detailed misbehavior report, together with the testimony of its author and other testimony offered at the hearing, provide substantial evidence to support the determination of guilt (see Matter of Woodward v Annucci, 175 A.D.3d 785, 785-786 [3d Dept 2019]; Matter of Green v Kirkpatrick, 165 A.D.3d 1375, 1376 [3d Dept 2018], lv denied 32 N.Y.3d 919 [2019]; Matter of Osborne v Venettozzi, 141 A.D.3d 990, 991 [3d Dept 2016]). The contrary testimony of petitioner and his inmate witnesses, as well as petitioner's contention that the misbehavior report was retaliatory, presented credibility issues for the Hearing Officer to resolve (see Matter of Hickson v Annucci, 214 A.D.3d 1290, 1291 [3d Dept 2023]; Matter of Woodward v Annucci, 175 A.D.3d at 786; Matter of Cosme v New York State Dept. of Corr. & Community Supervision, 168 A.D.3d 1327, 1328 [3d Dept 2019]).
Petitioner also contends that he experienced prejudice when the Hearing Officer allegedly failed to provide him with a written copy of the disposition within 24 hours as required (see 7 NYCRR 254.7 [a] [2]). The Hearing Officer read the written disposition into the record at the conclusion of the hearing, and "[t]he deficiency was cured by petitioner's receipt of a copy of the written disposition during the pendency of the proceeding and he has not demonstrated that he was prejudiced" (Matter of Hinton v Fischer, 102 A.D.3d 1018, 1018-1019 [3d Dept 2013]; see Matter of Eleby v New York State Dept. of Corr. and Community Supervision, 224 A.D.3d 977, 978 [3d Dept 2024]). Finally, we are unpersuaded by petitioner's contention that the Hearing Officer improperly denied petitioner access to a video of the incident. The Hearing Officer requested the recording and was advised by facility staff that the incident was not captured on video (see Matter of Gentry v Annucci, 217 A.D.3d 1569, 1570 [4th Dept 2023]). Notwithstanding this vague explanation, in light of the testimony adduced at the hearing and petitioner's assertions as to what may have been gleaned from the video had it been available, we find that it would have been of little probative value here (compare Matter of Headley v Annucci, 205 A.D.3d 1189, 1192 [3d Dept 2022, Lynch, J., dissenting]; Matter of Caraway v Annucci, 190 A.D.3d 1198, 1201-1202 [3d Dept 2021, Garry, P.J., dissenting]; Matter of Anselmo v Annucci, 176 A.D.3d 1283, 1287 [3d Dept 2019, Garry, P.J., dissenting]). We have considered petitioner's remaining arguments, to the extent that they are properly before us, and find them to be unavailing.
Garry, P.J., Pritzker, Lynch, Ceresia and Mackey, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.