Johnnie Charles, Beacon, NY, petitioner pro se.
WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, ROBERT J. MILLER,
FRANCESCA E. CONNOLLY, JJ.
DECISION & JUDGMENT
pursuant to CPLR article 78 to review a determination of
Captain John C. Liska dated July 28, 2015, which affirmed a
determination of a civilian disciplinary hearing panel, made
after a disciplinary hearing, finding the petitioner guilty
of the charges of "unhygienic acts towards other
inmates, " "causing unrest in housing unit, "
"failure to comply with a direct order, "
"reckless eyeballing or intimidate by staring, "
"conduct which causes a disturbance, " and
"being found guilty of [three] or more class C
infractions, " and imposing a penalty.
that the petition is granted, on the law, without costs or
disbursements, to the extent that so much of the
determination dated July 28, 2015, as affirmed the finding
that the petitioner was guilty of the charge of
"unhygienic acts towards other inmates" is
annulled, that charge is dismissed, the respondents are
directed to expunge all references to that finding from the
petitioner's institutional record, the petition is
otherwise denied, the determination dated July 28, 2015, is
otherwise confirmed, and the proceeding is otherwise
dismissed on the merits.
24, 2015, the petitioner, an inmate at the Rockland County
Correctional Facility, returned to the housing unit after
having a tooth extracted. A correction officer observed the
petitioner spit blood into a garbage can within the housing
unit, and the officer directed the petitioner to remove the
garbage bag. The petitioner complied with the officer's
direction to remove the garbage bag, but thereafter, the
petitioner, among other things, repeatedly refused the
officer's direction to return to his cell. The petitioner
was charged with several infractions, including
"unhygienic acts towards other inmates, "
"causing unrest in housing unit, " "failure to
comply with a direct order, " "reckless eyeballing
or intimidate by staring, " "conduct which causes a
disturbance, " and "being found guilty of [three]
or more class C infractions."
a disciplinary hearing, a civilian disciplinary hearing panel
found the petitioner guilty of the charges and imposed a
penalty. On July 28, 2015, the hearing panel's
determination was affirmed upon administrative appeal.
Thereafter, the petitioner commenced this proceeding pursuant
to CPLR article 78 to review the determination. In an order
entered July 1, 2016, the Supreme Court transferred the
proceeding to this Court pursuant to CPLR 7804(g).
to transferring the proceeding to this Court for
consideration of whether the determination was supported by
substantial evidence, the Supreme Court should have addressed
the petitioner's contentions that the determination was
rendered in violation of his due process rights, as those
objections, if established, could have terminated the
proceeding (see Matter of Sellers v Stanford, 144
A.D.3d 691, 691-692; Matter of Burgess v Bellnier,
138 A.D.3d 989, 990). However, since the full record is now
before this Court, we will decide the entire proceeding on
the merits in the interest of judicial economy (see
Matter of Sellers v Stanford, 144 A.D.3d at 692;
Matter of Burgess v Bellnier, 138 A.D.3d at 990;
Matter of Vaughn v Orlando, 79 A.D.3d 1048, 1049).
to the petitioner's contention, there is no evidence in
this record that he was denied his right to call witnesses at
the disciplinary hearing (see Matter of Mabry v
Maddox, 57 A.D.3d 1000). The petitioner's remaining
contentions regarding lack of due process are likewise
without merit (see Matter of Fisher v Garvey, 214
A.D.2d 564, 565; see also Matter of Burgess v
Bellnier, 138 A.D.3d at 990).
prison disciplinary determination made as a result of a
hearing at which evidence was taken pursuant to direction by
law must be supported by substantial evidence"
(Matter of Adamson v Barto, 37 A.D.3d 597, 598;
see CPLR 7803; Matter of Farooq v
Fischer, 99 A.D.3d 709, 711). "[S]ubstantial
evidence... means such relevant proof as a reasonable mind
may accept as adequate to support a conclusion or ultimate
fact" (300 Gramatan Ave. Assoc. v State Div. of
Human Rights, 45 N.Y.2d 176, 180; see Matter of
Jackson v Gerbing, 150 A.D.3d 734, 736). Here, the
evidence was insufficient to support the charge alleging that
the petitioner committed unhygienic acts toward other
inmates. However, the hearing panel's determination that
the petitioner was guilty of the remaining charges was
supported by substantial evidence in the record (see
Matter of Jackson v Gerbing, 150 A.D.3d at 736;
Matter of Phillips v Lee, 115 A.D.3d 957).
as the petitioner has already served the penalty and there
was no recommended loss of good-time credit, the matter need
not be remitted to the respondents for a redetermination of
the penalty insofar as it relates to the charges which have
been sustained (see Matter of Hollmann v Department of
Corr. & Community Supervision, 139 A.D.3d 1225;