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Washington v. Napoli

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


April 23, 2009

IN THE MATTER OF ANTHONY WASHINGTON, PETITIONER,
v.
DAVID NAPOLI, AS SUPERINTENDENT OF SOUTHPORT CORRECTIONAL FACILITY, RESPONDENT.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: March 2, 2009

Before: Cardona, P.J., Mercure, Rose, Lahtinen and Kavanagh, JJ.

MEMORANDUM AND JUDGMENT

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with violating the prison disciplinary rule that prohibits making threats. A tier II disciplinary hearing ensued, at the conclusion of which the Hearing Officer found petitioner guilty and imposed a penalty. Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding to annul the determination of guilt.

We confirm. The misbehavior report and the testimony of the authoring correction officer constitute substantial evidence of petitioner's guilt (see Matter of Frazier v Artus, 40 AD3d 1288 [2007]). Although "evidence of past grievances petitioner had filed against the same correction officer who authored the misbehavior report" plainly was relevant to petitioner's retaliation defense (Matter of Perkins v Goord, 257 AD2d 821, 822 [1999]), the Hearing Officer stipulated that petitioner previously had filed a grievance against the authoring correction officer. The Hearing Officer's refusal to produce a copy of the actual grievance, which petitioner admittedly possessed, or to permit testimony as to the substance of the underlying grievance does not warrant reversal (see Matter of Edwards v Goord, 11 AD3d 832, 833 [2004]). Petitioner's claim of retaliation presented a credibility determination for the Hearing Officer to resolve (see Matter of Davis v Goord, 34 AD3d 1027 [2006]), and petitioner's requested witnesses properly were denied in light of the fact that they had no first-hand knowledge of the underlying incident (see Matter of Smith v Portuondo, 309 AD2d 1028, 1029 [2003]). Finally, a review of the hearing transcript fails to support petitioner's claim of bias (see Matter of Harvey v Woods, 56 AD3d 829, 830 [2008]).

Cardona, P.J., Mercure, Rose, Lahtinen and Kavanagh, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

20090423

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