IN RE: Eric DANCY (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.

Petitioner, an incarcerated individual, was charged in a misbehavior report with assaulting an incarcerated individual, engaging in violent conduct, creating a disturbance and interfering with an employee.  According to the report, a correction officer responded to a loud noise in the stairwell, where he observed petitioner standing next to another incarcerated individual who was lying on the ground and a large amount of blood splattered on the walls of the stairwell.  The individual on the ground, who shouted an obscenity at petitioner, sustained two long lacerations on his face and one on his chest, and it was concluded that petitioner had assaulted that individual with an unrecovered cutting-type weapon.  Following a tier III disciplinary hearing, petitioner was found guilty of assaulting an incarcerated individual, engaging in violent conduct, creating a disturbance and interfering with an employee.  Upon administrative review, the charges of creating a disturbance and interfering with an employee were dismissed, and the charges of assaulting an incarcerated individual and engaging in violent conduct were affirmed.  This CPLR article 78 proceeding ensued.

We confirm.  The misbehavior report, hearing testimony and related documentary evidence provide substantial evidence to support the determination of guilt notwithstanding the fact that no weapon was recovered (see Matter of Lundy v. Annucci, 203 A.D.3d 1364, 1365, 160 N.Y.S.3d 923 [3d Dept. 2022];  Matter of Fernandez v. Annucci, 161 A.D.3d 1431, 1432, 77 N.Y.S.3d 721 [3d Dept. 2018];  Matter of Prince v. Annucci, 126 A.D.3d 1201, 1202, 3 N.Y.S.3d 637 [3d Dept. 2015];  Matter of Brown v. Goord, 286 A.D.2d 843, 844, 730 N.Y.S.2d 579 [3d Dept. 2001]).  “Although the incident was not witnessed, the circumstantial evidence and the reasonable inferences drawn therefrom provide a sufficient basis for a finding of guilt” (Matter of Hoyes v. Annucci, 213 A.D.3d 1011, 1012, 180 N.Y.S.3d 925 [3d Dept. 2023] [internal quotation marks and citations omitted]).  The differing testimony of petitioner presented credibility issues for the Hearing Officer to resolve (see Matter of Barzee v. Venettozzi, 173 A.D.3d 1580, 1581, 102 N.Y.S.3d 808 [3d Dept. 2019]).  Petitioner's remaining arguments either have not been preserved or lack merit.

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

Egan Jr., J.P., Lynch, Reynolds Fitzgerald, Ceresia and McShan, JJ., concur.