IN RE: Joseph PLEASANT (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 the 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 violent conduct, assault on an incarcerated individual, fighting and bribery/extortion.  Following a tier III disciplinary hearing, petitioner was found guilty as charged.  The determination was upheld upon administrative appeal, and this CPLR article 78 proceeding ensued.

Initially, respondent concedes, and we agree, that substantial evidence does not support the part of the determination finding petitioner guilty of fighting and, thus, we annul that part of the determination (see Matter of Sumter v. Annucci, 168 A.D.3d 1306, 1306, 92 N.Y.S.3d 453 [3d Dept. 2019];  Matter of Mears v. Venettozzi, 150 A.D.3d 1498, 1499, 54 N.Y.S.3d 219 [3d Dept. 2017], lv denied 30 N.Y.3d 905, 2017 WL 5492211 [2017]).  As no loss of good time was imposed and petitioner has already served the penalty, the matter need not be remitted for a reassessment of the penalty (see Matter of Wright v. Annucci, 190 A.D.3d 1249, 1249, 136 N.Y.S.3d 814 [3d Dept. 2021];  Matter of White v. Annucci, 169 A.D.3d 1326, 1327, 95 N.Y.S.3d 395 [3d Dept. 2019], lv dismissed 33 N.Y.3d 1048, 103 N.Y.S.3d 21, 126 N.E.3d 1061 [2019], lv denied 33 N.Y.3d 908, 2019 WL 2461615 [2019]).  Upon that same basis, petitioner's challenge to the severity of the penalty has been rendered moot (see Matter of Clark v. Jordan, 212 A.D.3d 976, 979, 181 N.Y.S.3d 743 [3d Dept. 2023]).  As to the remaining charges, the misbehavior report, unusual incident report, documentary evidence and the hearing testimony – including the confidential testimony and documentation considered by the Hearing Officer in camera – provide substantial evidence to support the determination finding petitioner guilty of violent conduct, assault on an incarcerated individual and bribery/extortion (see Matter of Abdullah v. New York State Dept. of Corr. & Community Supervision, 222 A.D.3d 1095, 1095, 201 N.Y.S.3d 754 [3d Dept. 2023];  Matter of Lundy v. Annucci, 219 A.D.3d 1622, 1622, 195 N.Y.S.3d 326 [3d Dept. 2023];  Matter of Ketchmore v. Annucci, 199 A.D.3d 1150, 1150, 154 N.Y.S.3d 282 [3d Dept. 2021]).  Any conflicting testimony or evidence was not dispositive and merely raised credibility issues for the Hearing Officer to resolve (see Matter of Lightner v. Venettozzi, 197 A.D.3d 1448, 1448, 151 N.Y.S.3d 909 [3d Dept. 2021];  Matter of Jones v. Annucci, 156 A.D.3d 1093, 1094, 65 N.Y.S.3d 480 [3d Dept. 2017]).

Petitioner's claim that the Hearing Officer did not properly assess the credibility of the confidential information, to the extent preserved for our review (see Matter of Kelly v. Mayes, 210 A.D.3d 1168, 1169–1170, 177 N.Y.S.3d 794 [3d Dept. 2022];  Matter of Lightner v. Venettozzi, 197 A.D.3d at 1449, 151 N.Y.S.3d 909), is without merit.  In this regard, the record reflects that the Hearing Officer's personal interview of the confidential source “was sufficiently thorough and specific ․ to assess[ ] the reliability and credibility of the confidential information provided” (Matter of Headley v. Annucci, 205 A.D.3d 1189, 1189–1190, 169 N.Y.S.3d 153 [3d Dept. 2022];  see Matter of Olivero v. New York State Dept. of Corr. & Community Supervision, 219 A.D.3d 1030, 1030, 192 N.Y.S.3d 803 [3d Dept. 2023];  Matter of Cajigas v. Rodriguez, 214 A.D.3d 1293, 1293–1294, 184 N.Y.S.3d 631 [3d Dept. 2023]).  We are further unpersuaded by petitioner's allegations of bias, as the Hearing Officer expressly considered petitioner's testimony and that of his witnesses, and an adverse ruling or credibility determination is not indicative of bias nor is there is any indication that the determination of guilt flowed from any alleged bias (see Matter of Farley v. Annucci, 224 A.D.3d 969, 971, 205 N.Y.S.3d 245 [3d Dept. 2024];  Matter of Williams v. Kirkpatrick, 153 A.D.3d 996, 996, 56 N.Y.S.3d 916 [3d Dept. 2017]).

Petitioner's contentions pertaining to employee assistance, timing of the hearing and notice of the charges are unpreserved for our review as they were not raised at the hearing when they could have been addressed (see Matter of Wiggins v. Venettozzi, 203 A.D.3d 1362, 1362–1363, 160 N.Y.S.3d 915 [3d Dept. 2022];  Matter of Diaz v. Lee, 171 A.D.3d 1382, 1382, 98 N.Y.S.3d 361 [3d Dept. 2019];  Matter of Redmon v. Smith, 141 A.D.3d 1071, 1071, 35 N.Y.S.3d 672 [3d Dept. 2016]).  His remaining arguments, to the extent properly before us, have been considered and found to be lacking in merit.

ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of fighting;  petition granted to that extent and respondent is directed to expunge all references to that charge from petitioner's institutional record;  and, as so modified, confirmed.

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