IN RE: Isiah WATERS (2024)

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 Acting Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner, an incarcerated individual, was charged in a misbehavior report with refusing a direct order, creating a disturbance, interfering with an employee, violating a movement regulation, making threats and demonstrating.  According to the misbehavior report, while being escorted to the mess hall with a large group of incarcerated individuals, petitioner was ordered to step out of the line, at which time petitioner made hand gestures to the rest of the group of incarcerated individuals to stop, which the group did.  Petitioner then stated to a correction officer, “What are you trying to do?  You are outnumbered.”  Petitioner then refused a direct order to continue to the mess hall before complying with a second order to continue with the group toward the mess hall.  Following a tier III disciplinary hearing, petitioner was found not guilty of demonstrating and making threats but guilty of refusing a direct order, creating a disturbance, interfering with an employee and violating a movement regulation.  Upon administrative review, the determination was affirmed.  Petitioner thereafter commenced this CPLR article 78 proceeding seeking to annul the determination.

We confirm.  Contrary to petitioner's contention, the misbehavior report and hearing testimony, including the testimony from the author of the misbehavior report, provide substantial evidence to support the determination of guilt (see Matter of Dove v. Annucci, 190 A.D.3d 1181, 1181–1182, 136 N.Y.S.3d 809 [3d Dept. 2021], lv denied 37 N.Y.3d 909, 2021 WL 4188675 [2021];  Matter of Steele v. Annucci, 178 A.D.3d 1226, 1226, 111 N.Y.S.3d 917 [3d Dept. 2019];  Matter of Barclay v. Goord, 23 A.D.3d 862, 862, 803 N.Y.S.2d 804 [3d Dept. 2005], lvs denied 6 N.Y.3d 705, 710, 812 N.Y.S.2d 34, 845 N.E.2d 466 [2006]).  “The contrary testimony of petitioner and his witnesses presented credibility issues for the Hearing Officer to resolve” (Matter of Santos v. Annucci, 209 A.D.3d 1084, 1085, 175 N.Y.S.3d 616 [3d Dept. 2022] [citations omitted]).  Moreover, there was nothing inconsistent about finding petitioner not guilty of making threats and demonstrating, but guilty of the remaining charges, as the charges did not depend on each other (see Matter of Caraway v. Annucci, 159 A.D.3d 1212, 1212, 73 N.Y.S.3d 272 [3d Dept. 2018];  cf.  Matter of Davis v. Annucci, 137 A.D.3d 1437, 1438, 27 N.Y.S.3d 291 [3d Dept. 2016]).  Petitioner's remaining procedural contentions, to the extent that they are preserved for our review, have been examined and lack merit.

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

Egan Jr., J.P., Clark, Lynch, Reynolds Fitzgerald and Fisher, JJ., concur.