Opinion
12-15-2016
In the Matter of Marcus TELESFORD, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Marcus Telesford, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Marcus Telesford, Malone, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: PETERS, P.J., McCARTHY, GARRY, EGAN JR. and ROSE, 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.
After a pat frisk of petitioner revealed a concealed object, he grabbed the correction officer's right hand in an attempt to thwart that officer's attempt to recover the object, and use of force was required to subdue petitioner and recover the object. As a result of the incident, petitioner was charged in a misbehavior report with engaging in violent conduct, assaulting staff and interfering with staff. Following a tier III disciplinary hearing, petitioner was found guilty of the charges, and that determination was upheld on administrative appeal. Petitioner then commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, testimony at the hearing, including the testimony of the correction officer who authored the misbehavior report, and documentary evidence provide substantial evidence to support the determination of guilt (see Matter of Boyd v. Prack, 136 A.D.3d 1136, 1136, 24 N.Y.S.3d 457 [2016] ; Matter of Douglas v. Fischer, 126 A.D.3d 1244, 1245, 3 N.Y.S.3d 654 [2015], lv. denied 26 N.Y.3d 904, 2015 WL 5254842 [2015] ). To the extent that petitioner denied, among other things, having attempted to assault the correction officer who conducted the pat frisk and contended that the misbehavior report was authored in retaliation for previous grievances that he had filed, these claims raised credibility issues for the Hearing Officer to resolve (see Matter of Garrow v. Annucci, 141 A.D.3d 1046, 1047, 35 N.Y.S.3d 662 [2016] ; Matter of Tuitt v. Martuscello, 106 A.D.3d 1355, 1356, 965 N.Y.S.2d 669 [2013], lv. denied 21 N.Y.3d 865, 2013 WL 4792405 [2013] ).
Turning to petitioner's procedural contentions, our review of the record establishes that petitioner received adequate employee assistance. Petitioner was provided with those documents that were relevant and available, and any deficiencies in assistance were remedied by the Hearing Officer who read into the record the unusual incident report, use of force report and related documentation (see Matter of Hernandez v. Fischer, 111 A.D.3d 1042, 1043, 974 N.Y.S.2d 666 [2014] ; Matter of Phelps v. Fischer, 108 A.D.3d 1003, 1004, 969 N.Y.S.2d 262 [2013], appeal dismissed 22 N.Y.3d 1046, 981 N.Y.S.2d 353, 4 N.E.3d 364 [2014] ). Moreover, petitioner was provided with an opportunity to review photographs taken after the incident and a use-of-force video. Contrary to petitioner's claim, he was not denied any relevant witnesses as the requested witnesses were either not present during the incident or would have provided testimony that was redundant or immaterial (see Matter of Sanders v. Annucci, 128 A.D.3d 1156, 1157, 7 N.Y.S.3d 733 [2015],appeal dismissed 26 N.Y.3d 964, 18 N.Y.S.3d 600, 40 N.E.3d 578 [2015] ; Matter of H'Shaka v. Fischer, 121 A.D.3d 1455, 1456, 995 N.Y.S.2d 404 [2014], lv. denied 24 N.Y.3d 913, 2015 WL 175229 [2015] ). Petitioner's remaining contentions have been considered and are unavailing.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.