Opinion
613.1 TP 17–01824
06-08-2018
In the Matter of Frederick L. WILLIAMS, Petitioner, v. Anthony ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent.
FREDERICK L. WILLIAMS, PETITIONER PRO SE. BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF COUNSEL), FOR RESPONDENT.
FREDERICK L. WILLIAMS, PETITIONER PRO SE.
BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a tier III disciplinary hearing, that he violated various inmate rules. Petitioner contends that substantial evidence does not support the determination that he violated inmate rules 107.11 ( 7 NYCRR 270.2 [B][8][ii] [harassment] ), 101.10 ( 7 NYCRR 270.2 [B][2][i] [sex offense] ) or 101.20 ( 7 NYCRR 270.2 [B][2][iii] [lewd conduct] ). We reject that contention.
The testimony of the correction officers at the hearing and the misbehavior report constitute substantial evidence that petitioner was guilty of violating the subject inmate rules (see Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 [1990] ; People ex rel. Vega v. Smith , 66 N.Y.2d 130, 140, 495 N.Y.S.2d 332, 485 N.E.2d 997 [1985] ). Petitioner's testimony in support of his claims, i.e., that the reporting correction officer was sexually harassing him and wrote the misbehavior report because she was afraid petitioner would "tell on" her and because she sought to retaliate against him for past grievances, merely presented an issue of credibility for resolution by the Hearing Officer (see Foster, 76 N.Y.2d at 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 ).
Contrary to petitioner's contention, the record does not support the conclusion that the Hearing Officer was biased or that the determination flowed from the alleged bias (see Matter of Colon v. Fischer, 83 A.D.3d 1500, 1501–1502, 921 N.Y.S.2d 441 [4th Dept. 2011] ; Matter of Rodriguez v. Herbert , 270 A.D.2d 889, 890, 706 N.Y.S.2d 284 [4th Dept. 2000] ). The mere fact that the Hearing Officer ruled against petitioner is insufficient to establish bias (see Matter of Edwards v. Fischer , 87 A.D.3d 1328, 1329, 930 N.Y.S.2d 358 [4th Dept. 2011] ; Matter of Wade v. Coombe , 241 A.D.2d 977, 977, 666 N.Y.S.2d 1023 [4th Dept. 1997] ).
Contrary to petitioner's further contention, we conclude that the Hearing Officer properly denied his request to call the Hall Captain to testify. Inasmuch as the Hall Captain did not witness the incident, the Hearing Officer properly determined that his testimony would be irrelevant (see Matter of Cunningham v. Annucci , 153 A.D.3d 1491, 1492, 59 N.Y.S.3d 907 [3d Dept. 2017] ). The Hearing Officer likewise properly denied petitioner's request for a video depicting a conversation he had with a correction officer in which the officer allegedly informed petitioner that the reporting officer did not report the incident to him. The content of the alleged conversation was not relevant to the issue whether petitioner violated the subject inmate rules. We further conclude, contrary to petitioner's additional contentions, that the Hearing Officer properly limited witness testimony to relevant questions concerning what happened on the date of the incident and properly excused a witness after petitioner became argumentative (see Matter of Townes v. Goord , 14 A.D.3d 754, 755, 786 N.Y.S.2d 855 [3d Dept. 2005] ).
Lastly, we reject petitioner's contention that the misbehavior report was fatally defective because it was written a day after the incident. The applicable regulation does not require that it be written the same day as the incident but, rather, it must be written "as soon as practicable" ( 7 NYCRR 251–3.1 [a]; see Matter of Hamilton v. Selsky, 13 A.D.3d 844, 846, 785 N.Y.S.2d 811 [3d Dept. 2004], lv denied 5 N.Y.3d 704, 801 N.Y.S.2d 1, 834 N.E.2d 780 [2005], rearg. denied 5 N.Y.3d 850, 806 N.Y.S.2d 169, 840 N.E.2d 138 [2005] ).