Opinion
532256
07-22-2021
In the Matter of Derrick TIGNER, Petitioner, v. Anthony RODRIGUEZ, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Derrick Tigner, Wallkill, petitioner pro se. Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Derrick Tigner, Wallkill, petitioner pro se.
Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Before: Garry, P.J., Lynch, Clark, 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 Ulster County) to review a determination of the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, became disruptive during a pat frisk and was charged in a misbehavior report with violations of several prison disciplinary rules. The matter proceeded to a disciplinary hearing and a determination that, as modified upon administrative appeal, found petitioner guilty of refusing a direct order, making threats and refusing a search or frisk. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report and hearing testimony from the correction officer who conducted the pat frisk, an inmate who observed the confrontation and petitioner himself, constitute substantial evidence to support the determination of guilt (see Matter of Ocasio v. Bullis, 162 A.D.3d 1424, 1424, 80 N.Y.S.3d 505 [2018] ; Matter of Vargas v. Fischer, 121 A.D.3d 1138, 1138, 992 N.Y.S.2d 907 [2014], lv dismissed 25 N.Y.3d 1197, 16 N.Y.S.3d 55, 37 N.E.3d 114 [2015] ). Petitioner's claim that the misbehavior report was authored in retaliation for him complaining about the correction officer's method of conducting pat frisks presented a credibility issue for the Hearing Officer to resolve (see Matter of Steele v. Annucci, 178 A.D.3d 1226, 1227, 111 N.Y.S.3d 917 [2019] ). Further, as the hearing testimony reflected that petitioner's complaint was not received until after the misbehavior report was issued, the Hearing Officer properly denied as irrelevant petitioner's request for testimony from the correction captain who investigated the complaint (compare Matter of Horton v. Annucci, 163 A.D.3d 1385, 1386, 80 N.Y.S.3d 744 [2018], with Matter of Lopez v. Fischer, 100 A.D.3d 1069, 1071–1072, 952 N.Y.S.2d 694 [2012] ). Finally, "contrary to petitioner's contention, ‘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 Gaston v. Fischer, 109 A.D.3d 1063, 1064, 971 N.Y.S.2d 376 [2013], quoting Matter of Costello v. Smith, 26 A.D.3d 566, 567, 807 N.Y.S.2d 724 [2006] ). Petitioner's remaining contentions, to the extent that they are preserved for our review, have been examined and found to lack merit.
Garry, P.J., Lynch, Clark, Pritzker and Reynolds Fitzgerald, JJ., concur. ADJUDGED that the determination is confirmed, without costs, and petition dismissed.