Calendar Date: April 4, 2017
Jeffrey Canzater-Smith, Rochester, petitioner pro se.
T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco of counsel), for respondent.
Before: Peters, P.J., Garry, Egan Jr., Devine and Aarons, 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 the Commissioner of Corrections and
Community Supervision finding petitioner guilty of violating
certain prison disciplinary rules.
refusing a direct order to remove articles of clothing from
his locker, petitioner became belligerent and shouted
obscenities to express his displeasure with the facility and
all of the people who were in his presence at that time. Upon
being ordered to walk into a separate room away from the
other inmates who were watching the incident, petitioner
walked into that room at which time he swung his right elbow
backwards, striking a correction officer in the face. As a
result of this incident, petitioner was charged in a
misbehavior report with refusing a direct order, creating a
disturbance, interfering with staff, assaulting staff, making
threats and engaging in violent conduct. Following a tier III
disciplinary hearing, petitioner was found guilty of the
charges, and that determination was affirmed upon
administrative appeal. This CPLR article 78 proceeding
confirm. The misbehavior report, documentary evidence
submitted for in camera review and the hearing testimony,
including the testimony from the correction officer who was
involved in the altercation, provide substantial evidence of
petitioner's guilt (see Matter of McCall v
Annucci, 123 A.D.3d 1267, 1268 ; Matter of
Wright v Fischer, 98 A.D.3d 759, 759 ).
Petitioner's exculpatory claims that he did not use
profane language during the incident, that he followed the
orders that were given to him and that the misbehavior report
was fabricated to cover up the correction officers'
assault of him presented credibility issues for the Hearing
Officer to resolve (see e.g. Matter of Young v
Prack, 142 A.D.3d 1226, 1226 ; Matter of
Medina v Annucci, 141 A.D.3d 1052, 1053 ;
Matter of Lashway v Fischer, 91 A.D.3d 1239, 1239
, lv denied 19 N.Y.3d 805');">19 N.Y.3d 805 ).
to petitioner's procedural contentions, the record
reflects that petitioner's employee assistant provided
meaningful assistance, and petitioner has not demonstrated
that he was prejudiced by his assistant's alleged
deficiencies (see Matter of Shoga v Annucci, 132
A.D.3d 1027, 1028 ; Matter of Colon v Goord,
11 A.D.3d 839, 840 ). Moreover, by providing petitioner
with a redacted copy of the unusual incident report and
logbook entries, the Hearing Officer sufficiently remedied
any alleged deficiencies in the assistance received (see
Matter of Telesford v Annucci, 145 A.D.3d 1304, 1305
; Matter of Hernandez v Fischer, 111 A.D.3d
1042, 1043 ). Finally, based upon our review of the
record and the transcript of the hearing, petitioner has not
demonstrated that the Hearing Officer's determination
flowed from any alleged bias against him (see Matter of
Medina v Annucci, 141 A.D.3d at 1053; Matter of
Genyard v Annucci, 136 A.D.3d 1091, 1092 ). Nor
was petitioner denied the right to call any witnesses when,
after the first requested witness provided testimony that
corroborated the testimony provided by the correction officer
who authored the misbehavior report, petitioner declined to
call any further witnesses (see Matter of Letizia v
Graham, 119 A.D.3d 1296, 1297 , lv denied
24 N.Y.3d 912');">24 N.Y.3d 912 ). Petitioner's remaining arguments
have been considered and, to the extent that they are
properly before us, found to be without merit.
Peters, P.J., Garry, Egan Jr., Devine and Aarons, JJ.,
that the determination is confirmed, without costs, ...