IN RE: Devin KEITT (2025)

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 was charged in a misbehavior report with losing state property, providing false information and refusing a direct order.  The charges stemmed from an incident wherein petitioner failed to return an elastic bandage that had been issued to him by a facility nurse.  At the conclusion of the tier II disciplinary hearing that followed, the Hearing Officer found petitioner guilty as charged and imposed a penalty.  Upon administrative review, the Hearing Officer's decision was affirmed, prompting petitioner to commence this CPLR article 78 proceeding to challenge respondent's determination.

We confirm.  The misbehavior report authored by the facility nurse – standing alone – constitutes substantial evidence to support the sustained charges (see e.g. Matter of Serrano v. Danforth, 221 A.D.3d 1148, 1148, 200 N.Y.S.3d 139 [3d Dept. 2023];  Matter of Ramos v. Annucci, 208 A.D.3d 1531, 1531, 175 N.Y.S.3d 140 [3d Dept. 2022], lv denied 39 N.Y.3d 909, 2023 WL 2530998 [2023];  Matter of Wimberly v. Annucci, 185 A.D.3d 1364, 1365, 126 N.Y.S.3d 432 [3d Dept. 2020], lv denied 36 N.Y.3d 903, 2020 WL 7393392 [2020]).  Although petitioner denied informing the nurse that he was unable to locate the bandage – contending instead that he told her that the item had been stolen – this presented a credibility issue for the Hearing Officer to resolve (see Matter of Mack v. Annucci, 219 A.D.3d 1033, 1034, 193 N.Y.S.3d 760 [3d Dept. 2023], lv denied 40 N.Y.3d 908, 2023 WL 8720864 [2023];  Matter of Smith v. Annucci, 217 A.D.3d 1306, 1306, 191 N.Y.S.3d 840 [3d Dept. 2023]), as did petitioner's claim that the misbehavior report was written in retaliation for a previously filed grievance (see Matter of Walton v. Annucci, 217 A.D.3d 1302, 1303, 192 N.Y.S.3d 328 [3d Dept. 2023], lv denied 40 N.Y.3d 906, 2023 WL 6977030 [2023];  Matter of Carzoglio v. Annucci, 216 A.D.3d 1272, 1273, 189 N.Y.S.3d 754 [3d Dept. 2023]).

Petitioner's procedural objections do not warrant extended discussion.  Despite his stated disability, petitioner did not have a regulatory right to an employee assistant because the record fails to reflect that petitioner was either illiterate, non-English speaking, sensorially disabled or placed in segregated confinement prior to the hearing (see 7 NYCRR 251–4.1[a]).  Given that the Hearing Officer read the charges and applicable rules to petitioner and petitioner ultimately confirmed his understanding thereof, the Hearing Officer did not abuse his discretion in denying petitioner's request for employee assistance (see 7 NYCRR 251–4.1[b]).  Similarly, inasmuch as the sanctions that may be imposed following a tier II disciplinary hearing do not include a loss of good time (see 7 NYCRR 253.7), the denial of such assistance does not implicate petitioner's due process rights (compare Matter of Simon v. Morton, 208 A.D.3d 1334, 1334, 174 N.Y.S.3d 593 [2d Dept. 2022]).

Contrary to petitioner's assertion, the record does not indicate that petitioner requested the testimony of the correction officer who investigated the subject grievance.  In any event, “the testimony would have been redundant as petitioner provided testimony in support of his retaliation claim and the Hearing Officer questioned the [misbehavior] report's author on this issue as a result” (Matter of Carzoglio v. Annucci, 216 A.D.3d at 1273, 189 N.Y.S.3d 754).  Finally, we find no merit to petitioner's claim that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Mena v. Gutwein, 216 A.D.3d 1384, 1386, 188 N.Y.S.3d 278 [3d Dept. 2023], lv denied 40 N.Y.3d 906, 2023 WL 6977068 [2023];  Matter of Moore v. Annucci, 214 A.D.3d 1276, 1276, 184 N.Y.S.3d 655 [3d Dept. 2023]).  Petitioner's remaining contentions, to the extent not specifically addressed, have been examined and found to be lacking in merit.

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

Garry, P.J., Aarons, Reynolds Fitzgerald, McShan and Powers, JJ., concur.