Opinion
535718
11-09-2023
In the Matter of Nicholas SERRANO, Petitioner, v. S. DANFORTH, as Superintendent of Franklin Correctional Facility, Respondent.
Nicholas Serrano, Malone, petitioner pro se. Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Nicholas Serrano, Malone, petitioner pro se.
Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Before: Egan Jr., J.P., Pritzker, Ceresia, McShan and Mackey, JJ.
MEMORANDUM AND JUDGMENT Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Franklin County) to review a determination of respondent finding petitioner guilty of violating a prison disciplinary rule.
Petitioner was charged in a misbehavior report with fighting and engaging in violent conduct. The charges stemmed from an incident wherein petitioner alleged that he had been assaulted by another incarcerated individual. At the conclusion of the tier II disciplinary hearing that followed, petitioner was found guilty of fighting and not guilty of engaging in violent conduct, and a penalty was imposed. Petitioner's administrative appeal was unsuccessful, prompting him to commence this CPLR article 78 proceeding to challenge the determination of guilt.
We confirm. The misbehavior report – standing alone – constitutes substantial evidence to support the finding that petitioner was guilty of fighting (see Matter of Wimberly v. Annucci, 185 A.D.3d 1364, 1365, 126 N.Y.S.3d 432 [3d Dept. 2020], lv denied 36 N.Y.3d 903, 2020 WL 7393392 [2020] ; Matter of Frye v. Commissioner of the Dept. of Corr. & Community Supervision, 175 A.D.3d 1690, 1690, 106 N.Y.S.3d 642 [3d Dept. 2019] ). To the extent that petitioner testified that he was attacked by another individual and denied defending himself, such testimony presented a credibility issue for the Hearing Officer to resolve (see e.g. Matter of Weston v. Loughren, 217 A.D.3d 1177, 1178, 191 N.Y.S.3d 771 [3d Dept. 2023] ; Matter of Hickson v. Annucci, 214 A.D.3d 1290, 1291, 184 N.Y.S.3d 645 [3d Dept. 2023] ). Petitioner's related assertion – that the determination was inherently inconsistent – is unavailing as the rules prohibiting fighting (see 7 NYCRR 270.2 [B][1][iv]) and engaging in violent conduct (see 7 NYCRR 270.2 [B][5][ii]) are two distinct violations (see generally Matter of Brown v. Selsky, 5 A.D.3d 905, 906, 772 N.Y.S.2d 757 [3d Dept. 2004] ).
As for petitioner's procedural objections, petitioner's claim that he was denied the right to call witnesses is unpreserved for our review as petitioner raised no objection in this regard at the administrative level (see Matter of Daniels v. Venettozzi, 219 A.D.3d 1000, 1001, 193 N.Y.S.3d 439 [3d Dept. 2023] ; Matter of Madden v. Griffin, 109 A.D.3d 1060, 1061, 971 N.Y.S.2d 586 [3d Dept. 2013] ). In any event, the record reflects that, prior to the hearing, petitioner executed a form indicating that he was not requesting any witnesses or documentary evidence and, at the start of the hearing, petitioner was apprised of his right to call witnesses and made no requests in this regard. Petitioner's argument regarding the timeliness of the response to his administrative appeal is similarly unpreserved due to petitioner's failure to raise this issue in his petition (see Matter of Kelly v. Annucci, 193 A.D.3d 1169, 1171, 145 N.Y.S.3d 657 [3d Dept. 2021] ; Matter of Randolph v. Annucci, 188 A.D.3d 1499, 1499, 132 N.Y.S.3d 900 [3d Dept. 2020] ). Petitioner's remaining contentions, to the extent not specifically addressed, have been examined and found to be lacking in merit.
Egan Jr., J.P., Pritzker, Ceresia, McShan and Mackey, JJ., concur. ADJUDGED that the determination is confirmed, without costs, and petition dismissed.