Opinion
1010 TP 17-00424.
10-06-2017
In the Matter of Njera WILSON, Petitioner, v. Anthony ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent.
Wyoming County–Attica Legal Aid Bureau, Warsaw (Leah R. Nowotarski of Counsel), for Petitioner. Eric T. Schneiderman, Attorney General, Albany (Zainab A. Chaudhry of Counsel), for Respondent.
Wyoming County–Attica Legal Aid Bureau, Warsaw (Leah R. Nowotarski of Counsel), for Petitioner.
Eric T. Schneiderman, Attorney General, Albany (Zainab A. Chaudhry of Counsel), for Respondent.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM:Petitioner commenced this CPLR article 78 proceeding seeking to annul two determinations, following two separate tier III disciplinary hearings, that he violated various inmate rules. The first determination concerned an incident that occurred on May 20, 2016, and the second determination concerned an incident that occurred on May 23, 2016. Addressing first the determination related to the May 23, 2016 incident, we conclude that respondent correctly concedes that the determination finding that petitioner violated inmate rule 101.22 ( 7 NYCRR 270.2 [B][2][v] [stalking] ) is not supported by substantial evidence. We therefore grant the petition in part by annulling the determination finding that petitioner violated that inmate rule, and we direct respondent to expunge from petitioner's institutional record all references to that violation and to refund the $5 surcharge related thereto.
Contrary to petitioner's remaining contention, the determination related to the May 20, 2016 incident, finding that he violated inmate rules 103.10 ( 7 NYCRR 270.2 [B][4][i] [extortion] ), 106.10 ( 7 NYCRR 270.2 [B][7] [i] [refusal to obey order] ), 107.10 ( 7 NYCRR 270.2 [B][8][i] [interference with employee] ) and 107.11 ( 7 NYCRR 270.2 [B][8][ii] [harassment] ), is supported by substantial evidence (see People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139–140, 495 N.Y.S.2d 332, 485 N.E.2d 997 ; Matter of Green v. Sticht, 124 A.D.3d 1338, 1339, 1 N.Y.S.3d 670, lv. denied 26 N.Y.3d 906, 2015 WL 5553451 ). At the hearing, petitioner pleaded guilty to violating rules 106.10 and 107.10, and he does not challenge his guilt with respect to violating those rules. " ‘In any event, the guilty plea constitutes substantial evidence of his guilt’ " (Matter of Holdip v. Travis, 9 A.D.3d 825, 826, 779 N.Y.S.2d 382 ; see Matter of Liner v. Fischer, 96 A.D.3d 1416, 1417, 946 N.Y.S.2d 737 ).
With respect to the remaining two inmate rules, the misbehavior report and the testimony of its author constitute substantial evidence that petitioner violated them (see generally Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 ; Vega, 66 N.Y.2d at 140, 495 N.Y.S.2d 332, 485 N.E.2d 997 ). Petitioner's testimony that he did not commit the violations "merely presented an issue of credibility that the Hearing Officer was entitled to resolve against him" ( Green, 124 A.D.3d at 1339, 1 N.Y.S.3d 670 ; see Foster, 76 N.Y.2d at 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 ).
It is hereby ORDERED that the determination finding petitioner guilty of violating inmate rule 101.2 ( 7 NYCRR 270.2 [B][2][v] ) is unanimously annulled on the law without costs, the petition is granted in part, respondent is directed to expunge from petitioner's institutional record all references to that violation and to refund the $5 surcharge, and the remaining determination is confirmed.