Calendar Date: February 28, 2017
Kirton, Auburn, petitioner pro se.
T. Schneiderman, Attorney General, Albany (Peter H. Schiff of
counsel), for respondent.
Before: Peters, P.J., McCarthy, Garry, Rose and Mulvey, JJ.
MEMORANDUM AND JUDGMENT
pursuant to CPLR article 78 (transferred to this Court by
order of the Supreme Court, entered in Albany County) to
review a determination of respondent finding petitioner
guilty of violating certain prison disciplinary rules.
petitioner was observed placing an unknown object in his
pants pocket in the mess hall, a correction officer gave him
several direct orders to show him what was in his pocket and,
in response, petitioner slid the object under his food tray
and denied having anything. When the officer tried to
retrieve the object, petitioner moved over to block the
officer from doing so. The officer used force to retrieve the
object, an envelope that appeared to be salt that tested
negative for controlled substances. After several direct
orders to get on the wall, petitioner complied and was
removed from the mess hall.
a tier III disciplinary hearing, petitioner was found guilty
of refusing a direct order, violating mess hall procedures
and interfering with an employee and not guilty of creating a
disturbance and violating frisk procedures. The determination
was upheld on administrative appeal, and this CPLR article 78
to petitioner's claim, the misbehavior report, video of
the incident and documentary evidence provide substantial
evidence to support the determination of guilt as to the
charges of refusing a direct order and interference with an
employee  (see Matter of Bailey v
Prack, 125 A.D.3d 1028, 1028 ; Matter of Dizak
v Prack, 120 A.D.3d 1472, 1473 , lv
denied 24 N.Y.3d 916');">24 N.Y.3d 916');">24 N.Y.3d 916');">24 N.Y.3d 916 ). However, as respondent
concedes, and we agree, there is insufficient evidence that
petitioner violated mess hall procedures and, therefore, the
determination should be annulled to that extent. Since
petitioner has already served the penalty and no loss of good
time was imposed, the matter need not be remitted for
resentencing (see Matter of Mohamed v Prack, 137
A.D.3d 1402, 1403 ).
is no merit to petitioner's claim that he was deprived of
the right to call certain witnesses. After petitioner
requested that four inmates be called as witnesses,
identified only by nicknames, the Hearing Officer designated
a correction officer to try to identify and produce them.
After several adjournments and multiple inquiries by the
correction officer, two of the potential witnesses were
located, one of whom testified, and the other, who had not
previously agreed to testify, signed a refusal form providing
a specific reason for his refusal (see Matter of
Cortorreal v Annucci, 28 N.Y.3d 54, 58-59 ). With
regard to the other two requested inmate witnesses, the
record reflects that the officer made repeated and reasonable
efforts, although unsuccessful, to identify and locate them
by inquiring in the mess hall where one worked and the cell
block where petitioner indicated the other was housed, but
the officer was unable to identify them (see Matter of
Williams v Annucci, 142 A.D.3d 1213, 1214 ;
Matter of Stephens v Lee, 115 A.D.3d 964, 964
). Petitioner's remaining contentions, including
that he did not receive adequate employee assistance, have
been reviewed and determined to lack merit.
Peters, P.J., McCarthy, Garry, Rose and Mulvey, JJ., concur.
that the determination is modified, without costs, by
annulling so much thereof as found petitioner guilty of
violating mess hall procedures; petition granted to that
extent and respondent is directed to expunge all references
to this charge from petitioner's institutional record;
and, as so modified, confirmed.
 While respondent takes the position that
the interference with an employee determination is not
supported by substantial evidence, we cannot agree. The proof
demonstrated that, after petitioner failed to comply with
direct orders to turn over the requested item and attempted
to conceal it under his tray, he further used his body to
block the correction officer's efforts to retrieve the
item, necessitating the officer's use of force to gain
possession of it (see Matter of Dizak v Prack, 120
A.D.3d 1472, 1473 , lv denied24 ...