IN RE: Jason BAXTER (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.

A correction officer authored a misbehavior report charging petitioner, an incarcerated individual, with violating several prison disciplinary rules after she observed him masturbating at his cell gate and he ignored her initial order to stop.  Following a tier III disciplinary hearing, petitioner was found guilty of engaging in lewd conduct and refusing a direct order.  Upon administrative appeal, the penalty was reduced but the findings of guilt were upheld.  This CPLR article 78 proceeding ensued.

“[A]lthough petitioner reached his maximum expiration date and has been discharged from custody, this proceeding is not moot because petitioner is entitled to have an institutional record free from improperly obtained findings of disciplinary rule violations” (Matter of Quiroz v. Venettozzi, 161 A.D.3d 1475, 1475, 78 N.Y.S.3d 443 [3d Dept. 2018] [internal quotation marks and citations omitted];  see Matter of Ryhal v. Annucci, 208 A.D.3d 1397, 1398, 174 N.Y.S.3d 480 [3d Dept. 2022]).  As for the merits, the misbehavior report and the hearing testimony, which included that of the correction officer who authored the report and another officer who assisted her after hearing her order petitioner to stop masturbating, provide substantial evidence to support the determination of guilt (see Matter of Stewart v. Collado, 214 A.D.3d 1229, 1230, 183 N.Y.S.3d 867 [3d Dept. 2023];  Matter of Dillon v. Annucci, 196 A.D.3d 957, 958, 147 N.Y.S.3d 898 [3d Dept. 2021]).  Petitioner's claim that the allegations in the misbehavior report were fabricated created a credibility issue for the Hearing Officer to resolve (see Matter of Coleman v. Fischer, 87 A.D.3d 778, 779, 928 N.Y.S.2d 153 [3d Dept. 2011]).

Contrary to petitioner's contention, the Hearing Officer properly limited his questioning of the correction officer who witnessed petitioner's actions and authored the misbehavior report to relevant matters (see Matter of Bekka v. Annucci, 137 A.D.3d 1446, 1447, 27 N.Y.S.3d 292 [3d Dept. 2016];  Matter of Fero v. Prack, 110 A.D.3d 1128, 1129, 972 N.Y.S.2d 115 [3d Dept. 2013]).  His related claim of bias is “without merit, as the record reflects that the determination of guilt was based upon the evidence presented at the hearing and not any alleged bias on the part of the Hearing Officer” (Matter of Stewart v. Collado, 214 A.D.3d at 1230, 183 N.Y.S.3d 867;  see Matter of Fero v. Prack, 110 A.D.3d at 1129, 972 N.Y.S.2d 115).  Petitioner's remaining argument is not properly before us because it was not raised in the petition (see Matter of Infinger v. Venettozzi, 164 A.D.3d 1578, 1579, 84 N.Y.S.3d 594 [3d Dept. 2018];  Matter of Madison v. Fischer, 108 A.D.3d 959, 960, 968 N.Y.S.2d 748 [3d Dept. 2013]).

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

Pritzker, J.P., Ceresia, Fisher, Powers and Mackey, JJ., concur.