IN RE: Andre SMITH (2023)

MEMORANDUM AND JUDGMENT

Proceeding 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.

Upon being escorted back to his cell block, petitioner, an incarcerated individual, was unable to proceed through a magnometer and was ordered to the wall for a pat frisk, which petitioner refused.  When the order was repeated by a correction officer, petitioner refused the direct order and struck the correction officer's hands, resulting in the use of force and petitioner being placed in handcuffs.  Petitioner was subsequently charged in a misbehavior report with refusing a direct order, assaulting a staff member and refusing a search or frisk.  Following a tier III disciplinary hearing, petitioner was found guilty of the charges.  The determination was affirmed upon administrative appeal, and this CPLR article 78 proceeding ensued.

We confirm.  The misbehavior report, documentary evidence and testimony at the hearing constitute substantial evidence to support the determination of guilt (see Matter of Ocasio v. Bullis, 162 A.D.3d 1424, 1424, 80 N.Y.S.3d 505 [3d Dept. 2018];  Matter of Reyes v. Keyser, 150 A.D.3d 1502, 1503–1504, 55 N.Y.S.3d 495 [3d Dept. 2017];  Matter of Lopez v. Annucci, 146 A.D.3d 1262, 1263, 45 N.Y.S.3d 700 [3d Dept. 2017];  Matter of Walker v. Fischer, 108 A.D.3d 999, 1000, 969 N.Y.S.2d 256 [3d Dept. 2013]).  Although petitioner denied that the underlying conduct occurred and asserted that the misbehavior report was written in retaliation for a prior encounter between petitioner and the authoring correction officer, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Harrell v. Annucci, 204 A.D.3d 1268, 1269, 165 N.Y.S.3d 383 [3d Dept. 2022];  Matter of Martin v. Rodriguez, 171 A.D.3d 1322, 1323, 95 N.Y.S.3d 909 [3d Dept. 2019]).

“Turning to petitioner's procedural claims, although the hearing transcript contains inaudible portions, the gaps are not so substantial or significant as to preclude meaningful review of the procedural arguments advanced by petitioner” (Matter of Infinger v. Venettozzi, 164 A.D.3d 1578, 1579, 84 N.Y.S.3d 594 [3d Dept. 2018] [citations omitted];  see Matter of Cain v. Lee, 175 A.D.3d 1702, 1702, 108 N.Y.S.3d 535 [3d Dept. 2019]).  Petitioner's remaining contentions, including his claim that the Hearing Officer exhibited bias, have been considered and are either unpreserved for our review or lacking in merit.

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

Egan Jr., J.P., Lynch, Clark, Aarons and Ceresia, JJ., concur.