Opinion
519385
05-07-2015
In the Matter of Terry SANDERS, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Terry Sanders, Romulus, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Terry Sanders, Romulus, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: McCARTHY, J.P., GARRY, ROSE 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 respondent which found petitioner guilty of violating certain prison disciplinary rules.
As petitioner was returning to his cell from his prison job, a correction officer stopped him and questioned him about some paperwork that he was carrying. Petitioner became argumentative and the officer ordered him to stand against the wall for a pat frisk. Petitioner proceeded to strike the officer and another officer in the area, and a struggle ensued during which petitioner ignored orders to place his hands behind his back. He was thereafter charged in a misbehavior report with assaulting staff, engaging in violent conduct, creating a disturbance, interfering with an employee and refusing a direct order. He was found guilty of the charges following a tier III disciplinary hearing, and the determination was affirmed on administrative appeal. Petitioner then commenced this CPLR article 78 proceeding.We confirm. The detailed misbehavior report and testimony of one of the officers involved in the altercation provide substantial evidence supporting the determination of guilt (see Matter of Hinton v. Rock, 108 A.D.3d 952, 953, 969 N.Y.S.2d 237 [2013] ; Matter of Owens v. Fischer, 105 A.D.3d 1284, 1284, 963 N.Y.S.2d 604 [2013] ). Petitioner was not improperly denied witnesses given that the individuals requested were not present during the incident and their testimony would, therefore, have been irrelevant (see Matter of Wilson v. Fischer, 120 A.D.3d 1477, 1478, 991 N.Y.S.2d 916 [2014] ; Matter of Toliver v. New York State Commr. of Corr. & Community Supervision, 114 A.D.3d 987, 988, 979 N.Y.S.2d 866 [2014] ). Moreover, contrary to petitioner's claim, there is no indication that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Harding v. Prack, 118 A.D.3d 1231, 1232, 987 N.Y.S.2d 712 [2014] ; Matter of Adams v. Fischer, 116 A.D.3d 1269, 1270, 983 N.Y.S.2d 746 [2014] ). Furthermore, upon reviewing the record, we do not find that the gaps in the hearing transcript preclude meaningful review (see Matter of Merritt v. Fischer, 108 A.D.3d 993, 994–995, 969 N.Y.S.2d 248 [2013] ; Matter of Bookman v. Fischer, 107 A.D.3d 1260, 1260, 967 N.Y.S.2d 242 [2013] ). Petitioner's remaining contentions, to the extent that they are properly before us, have been considered and are unavailing.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.