IN RE: Andre SMITH (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 the Superintendent of Sullivan Correctional Facility finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with a movement violation, refusing a direct order and engaging in harassment.  The charges stemmed from an incident wherein petitioner became argumentative and refused to comply with a correction officer's repeated orders to ascend a facility stairwell.  At the conclusion of the tier II disciplinary hearing that followed, the Hearing Officer found petitioner guilty of all charges and imposed a 60–day loss of privileges.  Petitioner's administrative appeal was unsuccessful, prompting him to commence this CPLR article 78 proceeding to challenge the underlying determination.

We confirm.  The detailed misbehavior report and testimony of its author provide substantial evidence to support the findings of guilt (see Matter of Rizzuto v. Melville, 210 A.D.3d 1152, 1153–1154, 177 N.Y.S.3d 778 [3d Dept. 2022];  Matter of Grant v. Capra, 200 A.D.3d 1443, 1443, 155 N.Y.S.3d 835 [3d Dept. 2021]).  To the extent that petitioner and his witness provided contrary testimony, this presented a credibility issue for the Hearing Officer to resolve (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 Rizzuto v. Melville, 210 A.D.3d at 1154, 177 N.Y.S.3d 778).  Petitioner's related assertion – that the record contains insufficient evidence of harassment – is unpersuasive, as the vulgar and abusive language described in the misbehavior report and the authoring correction officer's testimony falls squarely within the definition of harassment as set forth in 7 NYCRR 270.2(B)(8)(ii) (see e.g. Matter of Rizzuto v. Melville, 210 A.D.3d at 1153, 177 N.Y.S.3d 778;  Matter of Woodward v. Annucci, 175 A.D.3d 785, 786, 105 N.Y.S.3d 724 [3d Dept. 2019]).

Petitioner's claim that he was denied due process because he was not provided with a video of the incident lacks merit, as the record reflects that no video of the stairwell encounter exists (see Matter of Barnes v. Venettozzi, 207 A.D.3d 969, 970–971, 172 N.Y.S.3d 775 [3d Dept. 2022];  Matter of Verdi v. Collado, 200 A.D.3d 1379, 1380, 160 N.Y.S.3d 416 [3d Dept. 2021]).  Although petitioner asserts that the misbehavior report was retaliatory in nature, this argument was not raised at the administrative hearing and, therefore, is unpreserved for our review (see Matter of Simpson v. Jordan, 235 A.D.3d 1223, 1224, 228 N.Y.S.3d 494 [3d Dept. 2025];  Matter of Bookman v. Fischer, 107 A.D.3d 1260, 1260, 967 N.Y.S.2d 242 [3d Dept. 2013]).  Finally, the record does not support petitioner's claim that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Keitt v. Lamay, 236 A.D.3d 1225, 1226, 229 N.Y.S.3d 704 [3d Dept. 2025];  Matter of Dean v. Martuscello, 236 A.D.3d 1223, 1224, 229 N.Y.S.3d 706 [3d Dept. 2025]), and inasmuch as petitioner has served his administrative penalty, his challenge to the legality thereof is moot (see Matter of Smith v. Annucci, 232 A.D.3d 1014, 1015, 220 N.Y.S.3d 199 [3d Dept. 2024]).  Petitioner's remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit or rendered academic.

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

Clark, J.P., Pritzker, Reynolds Fitzgerald, Fisher and Powers, JJ., concur.