Opinion
519889.
09-17-2015
In the Matter of John RAMOS, Petitioner, v. D. VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, et al., Respondents.
John Ramos, Comstock, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondents.
John Ramos, Comstock, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondents.
Before: PETERS, P.J., GARRY, DEVINE and CLARK, JJ.
Opinion 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 the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.
A correction officer observed petitioner involved in a physical altercation with another inmate. Both petitioner and the other inmate disregarded the officer's directive to cease engaging in such conduct. As a result, petitioner was charged in a misbehavior report with fighting, engaging in violent conduct and refusing a direct order. Following a tier III disciplinary hearing, he was found guilty of the charges. The determination was later affirmed on administrative appeal with a modified penalty and this CPLR article 78 proceeding followed.
We confirm. The misbehavior report and related documentation, together with the testimony of the correction officers familiar with the incident, provide substantial evidence supporting the determination of guilt (see Matter of James v. New York State Dept. of Corr. & Community Supervision, 127 A.D.3d 1537, 1537, 5 N.Y.S.3d 924 [2015] ; Matter of Nelson v. Fischer, 93 A.D.3d 1059, 940 N.Y.S.2d 497 [2012] ). Although petitioner maintained that he was not the aggressor and was only defending himself, and his inmate witnesses backed up his claims, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Smith v. Rock, 108 A.D.3d 889, 889, 969 N.Y.S.2d 590 [2013], lv. denied 22 N.Y.3d 854, 2013 WL 5716250 [2013] ). Moreover, we find no merit to petitioner's assertions that he was denied a fair and impartial hearing. Pursuant to 7 NYCRR 254.1, the Hearing Officer was authorized to conduct the hearing, and there is no indication that he was involved in the investigation of the incident or that his review of the final unusual incident report, in his capacity as a captain, required his disqualification (see Matter of Rogers v. Prack, 118 A.D.3d 1223, 1224, 987 N.Y.S.2d 710 [2014], lv. granted 24 N.Y.3d 916, 2015 WL 652132 [2015] ; Matter of Sime v. Goord, 30 A.D.3d 887, 888, 817 N.Y.S.2d 733 [2006], lv. denied 7 N.Y.3d 717, 826 N.Y.S.2d 605, 860 N.E.2d 67 [2006] ). Furthermore, contrary to petitioner's claim, the penalty imposed, which was reduced on administrative appeal, is not so excessive as to be “ ‘shocking to one's sense of fairness' ” (Matter of Taylor v. Fischer, 89 A.D.3d 1298, 1299, 932 N.Y.S.2d 591 [2011], quoting Matter of Phipps v. Fischer, 82 A.D.3d 1396, 1397, 918 N.Y.S.2d 385 [2011] ; see Matter of Berry v. Fischer, 78 A.D.3d 1411, 1412, 913 N.Y.S.2d 782 [2010] ). Petitioner's remaining contentions have either not been preserved for our review or are lacking in merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.