Opinion
534912
11-03-2022
In the Matter of Peter THOUSAND, Petitioner, v. NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent.
Peter Thousand, Woodbourne, petitioner pro se. Letitia James, Attorney General, Albany (Frank Brady of counsel), for respondent.
Peter Thousand, Woodbourne, petitioner pro se.
Letitia James, Attorney General, Albany (Frank Brady of counsel), for respondent.
Before: Lynch, J.P., Clark, Aarons, Pritzker and Reynolds Fitzgerald, JJ.
MEMORANDUM AND JUDGMENT Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Sullivan County) to review a determination of the Acting Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.
As a result of an investigation, it was discovered that, during a cell cleanup and linen exchange, petitioner, an incarcerated individual, entered another incarcerated individual's cell and exchanged punches with that individual, resulting in numerous other incarcerated individuals who were entering the gallery to stop and observe the altercation. Based upon the foregoing, petitioner was charged in a misbehavior report with fighting, engaging in violent conduct, creating a disturbance and being out of place. Following the above incident, a correction officer searched petitioner's cell and discovered, among other things, an altered combination lock with something pushed into the keyhole to prevent the lock from being opened with a key. Petitioner was then charged in a second misbehavior report with altering an item and possessing contraband. At a combined tier III disciplinary hearing, petitioner pleaded guilty to altering an item and being out of place and was found guilty of the remaining charges consisting of fighting, engaging in violent conduct, creating a disturbance and possessing contraband. Upon administrative review, the determination was affirmed, prompting this CPLR article 78 proceeding.
We confirm. Petitioner's plea of guilty to the charges of altering an item and being out of place precludes him from now challenging the evidentiary basis for those charges (see Matter of Bouknight v. Annucci, 181 A.D.3d 1079, 1079, 121 N.Y.S.3d 388 [3d Dept. 2020] ). As to the remaining charges, the misbehavior reports, hearing testimony – including the confidential testimony considered by the Hearing Officer in camera – and documentary evidence provide substantial evidence to support the determination of guilt (see Matter of Morales v. Fischer, 119 A.D.3d 1298, 1299, 989 N.Y.S.2d 921 [3d Dept. 2014] ; Matter of Acosta v. Fischer, 98 A.D.3d 1170, 1171, 950 N.Y.S.2d 816 [3d Dept. 2012] ; Matter of Peoples v. Bezio, 94 A.D.3d 1299, 1300, 942 N.Y.S.2d 676 [3d Dept. 2012] ; see also Matter of Jones v. Bellamy, 80 A.D.3d 1029, 1029–1030, 915 N.Y.S.2d 383 [3d Dept. 2011] ). To the extent that petitioner asserts that he was not involved in the alleged altercation because he was not injured, it is not necessary that he sustain an injury to be found guilty of fighting another incarcerated individual (see 7 NYCRR 270.2 [B][1][iv]; cf. Matter of Chung v. Annucci, 199 A.D.3d 1147, 1148, 156 N.Y.S.3d 590 [3d Dept. 2021] ). Further, the differing accounts of the altercation offered by petitioner and his witness presented a credibility issue for the Hearing Officer to resolve (see Matter of Caraway v. Annucci, 159 A.D.3d 1212, 1212, 73 N.Y.S.3d 272 [3d Dept. 2018] ; Matter of Jones v. Annucci, 156 A.D.3d 1093, 1094, 65 N.Y.S.3d 480 [3d Dept. 2017] ).
Turning to petitioner's procedural claims, we find no merit to the claim that he was denied 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, provided petitioner with his medical report and took confidential testimony regarding petitioner's mental health status (see Matter of Funches v. State of New York Dept. of Corr. & Community Supervision, 163 A.D.3d 1390, 1391, 80 N.Y.S.3d 742 [3d Dept. 2018], lv dismissed 32 N.Y.3d 1140, 92 N.Y.S.3d 177, 116 N.E.3d 661 [2019] ; Matter of Telesford v. Annucci, 145 A.D.3d 1304, 1305, 44 N.Y.S.3d 243 [3d Dept. 2016] ). Moreover, petitioner has not demonstrated that he was prejudiced by any of the employee assistant's alleged shortcomings (see Matter of Morales v. Venettozzi, 186 A.D.3d 1871, 1872, 129 N.Y.S.3d 348 [3d Dept. 2020] ; Matter of Zielinski v. Venettozzi, 177 A.D.3d 1047, 1048, 112 N.Y.S.3d 338 [3d Dept. 2019] ). Furthermore, "we find no error in consolidating the [two] misbehavior reports into one hearing inasmuch as the record establishes that the incidents were related and petitioner failed to demonstrate any prejudice as a result of the consolidation" ( Matter of Mitchell v. Annucci, 149 A.D.3d 1365, 1366, 50 N.Y.S.3d 312 [3d Dept. 2017] ; see Matter of Hawley v. Annucci, 137 A.D.3d 1621, 1622, 26 N.Y.S.3d 918 [4th Dept. 2016] ; Matter of Baker v. Fischer, 96 A.D.3d 1334, 1334, 946 N.Y.S.2d 909 [3d Dept. 2012] ). There is also no indication that the Hearing Officer was biased or that the determination flowed from any alleged bias (see
Matter of Partak v. Venettozzi, 175 A.D.3d 1633, 1635, 109 N.Y.S.3d 481 [3d Dept. 2019] ). Finally, "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, 148 N.Y.S.3d 400 [3d Dept. 2021] [internal quotation marks and citations omitted]). To the extent that petitioner's remaining contentions are properly before us, including his claim that he was denied relevant and nonredundant witnesses, they have been considered and found to be without merit.
Lynch, J.P., Clark, Aarons, Pritzker and Reynolds Fitzgerald, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.