IN RE: Tyrone PETERS (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 finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner, an incarcerated individual, was charged in a misbehavior report with making threats and engaging in violent conduct.  According to the misbehavior report, a fight broke out in the prison yard, where petitioner, amidst approximately 174 other incarcerated individuals, was observed by a correction officer yelling, “[c]ut them f* * *ing C.O.’s” and “[s]lice them f* * *ing C.O.’s.” At the conclusion of the tier III disciplinary hearing that followed, petitioner was found guilty of the charges.  The determination was upheld upon administrative review.  This CPLR article 78 proceeding ensued, and we confirm.

As an initial matter, and “contrary to petitioner's contention, there is no indication that the transcript of the hearing was deliberately altered or that significant portions are missing such as to preclude meaningful review” (Matter of Tigner v. Rodriguez, 196 A.D.3d 982, 982, 148 N.Y.S.3d 400 [3d Dept. 2021] [internal quotation marks and citations omitted];  see Matter of Thousand v. New York State Dept. of Corr. & Community Supervision, 210 A.D.3d 1174, 1176, 177 N.Y.S.3d 796 [3d Dept. 2022]).  Turning to the disciplinary determination, the detailed misbehavior report, together with the testimony of its author and other testimony offered at the hearing, provide substantial evidence to support the determination of guilt (see Matter of Woodward v. Annucci, 175 A.D.3d 785, 785–786, 105 N.Y.S.3d 724 [3d Dept. 2019];  Matter of Green v. Kirkpatrick, 165 A.D.3d 1375, 1376, 86 N.Y.S.3d 228 [3d Dept. 2018], lv denied 32 N.Y.3d 919, 2019 WL 1407412 [2019];  Matter of Osborne v. Venettozzi, 141 A.D.3d 990, 991, 34 N.Y.S.3d 916 [3d Dept. 2016]).  The contrary testimony of petitioner and his inmate witnesses, as well as petitioner's contention that the misbehavior report was retaliatory, presented credibility issues for the Hearing Officer to resolve (see Matter of Hickson v. Annucci, 214 A.D.3d 1290, 1291, 184 N.Y.S.3d 645 [3d Dept. 2023];  Matter of Woodward v. Annucci, 175 A.D.3d at 786, 105 N.Y.S.3d 724;  Matter of Cosme v. New York State Dept. of Corr. & Community Supervision, 168 A.D.3d 1327, 1328, 92 N.Y.S.3d 745 [3d Dept. 2019]).

Petitioner also contends that he experienced prejudice when the Hearing Officer allegedly failed to provide him with a written copy of the disposition within 24 hours as required (see 7 NYCRR 254.7[a][2]).  The Hearing Officer read the written disposition into the record at the conclusion of the hearing, and “[t]he deficiency was cured by petitioner's receipt of a copy of the written disposition during the pendency of the proceeding and he has not demonstrated that he was prejudiced” (Matter of Hinton v. Fischer, 102 A.D.3d 1018, 1018–1019, 957 N.Y.S.2d 773 [3d Dept. 2013];  see Matter of Eleby v. New York State Dept. of Corr. and Community Supervision, 224 A.D.3d 977, 978, 205 N.Y.S.3d 242 [3d Dept. 2024]).  Finally, we are unpersuaded by petitioner's contention that the Hearing Officer improperly denied petitioner access to a video of the incident.  The Hearing Officer requested the recording and was advised by facility staff that the incident was not captured on video (see Matter of Gentry v. Annucci, 217 A.D.3d 1569, 1570, 192 N.Y.S.3d 374 [4th Dept. 2023]).  Notwithstanding this vague explanation, in light of the testimony adduced at the hearing and petitioner's assertions as to what may have been gleaned from the video had it been available, we find that it would have been of little probative value here (compare Matter of Headley v. Annucci, 205 A.D.3d 1189, 1192, 169 N.Y.S.3d 153 [3d Dept. 2022, Lynch, J., dissenting];  Matter of Caraway v. Annucci, 190 A.D.3d 1198, 1201–1202, 141 N.Y.S.3d 166 [3d Dept. 2021, Garry, P.J., dissenting];  Matter of Anselmo v. Annucci, 176 A.D.3d 1283, 1287, 109 N.Y.S.3d 512 [3d Dept. 2019, Garry, P.J., dissenting]).  We have considered petitioner's remaining arguments, to the extent that they are properly before us, and find them to be unavailing.

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

Garry, P.J., Pritzker, Lynch, Ceresia and Mackey, JJ., concur.