IN RE: James A. HONE (2026)

MEMORANDUM AND JUDGMENT

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Clinton County) to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with harassment, creating a disturbance and refusing a direct order.  According to the author of the misbehavior report, while she was speaking with petitioner about his assigned duty, petitioner raised his voice and yelled at her, which caused three other incarcerated library clerks to stop what they were doing and watch the incident.  Following a tier II disciplinary hearing, petitioner was found guilty of creating a disturbance and refusing a direct order, resulting in the imposition of a 15–day penalty of loss of package and commissary privileges and petitioner being referred to the program committee.  That determination was affirmed on administrative appeal, prompting this CPLR article 78 proceeding.

Initially, respondent concedes, and our review of the record confirms, that substantial evidence does not support finding petitioner guilty of refusing a direct order, and, as such, we annul that part of the determination (see Matter of Stevens v. Zenzen, 156 A.D.3d 1001, 1002, 66 N.Y.S.3d 565 [3d Dept. 2017];  Matter of Medina v. Five Points Corr. Facility, 153 A.D.3d 1471, 1472, 61 N.Y.S.3d 381 [3d Dept. 2017]).  Because no loss of good time was imposed and petitioner has served the penalty, the matter need not be remitted for reassessment of the penalty imposed (see Matter of Johnson v. Howard, 236 A.D.3d 1226, 1227, 229 N.Y.S.3d 272 [3d Dept. 2025];  Matter of Pleasant v. Shope, 233 A.D.3d 1156, 1157, 224 N.Y.S.3d 196 [3d Dept. 2024]).  For the same reason, petitioner's challenge to the severity of the penalty imposed is academic (see Matter of Pleasant v. Shope, 233 A.D.3d at 1157, 224 N.Y.S.3d 196).

As to the remaining charge of creating a disturbance, we initially are unpersuaded upon our review of the record that there are significant gaps in the hearing transcript that preclude meaningful judicial review (see Matter of Olukotun–Williams v. Gardner, 221 A.D.3d 1164, 1165, 200 N.Y.S.3d 148 [3d Dept. 2023], lv denied 42 N.Y.3d 902, 2024 WL 4125730 [2024], 243 N.E.3d 514;  compare Matter of Pierre v. Annucci, 226 A.D.3d 1272, 1273, 209 N.Y.S.3d 659 [3d Dept. 2024]).  As to the merits, contrary to petitioner's contention, the misbehavior report and testimony at the hearing provide substantial evidence to support the determination of guilt (see People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139–140, 495 N.Y.S.2d 332, 485 N.E.2d 997 [1985];  Matter of Haigler v. Lilley, 182 A.D.3d 888, 889, 120 N.Y.S.3d 864 [3d Dept. 2020]).  To the extent that petitioner denied the reported conduct and maintained that the misbehavior report was in retaliation for a complaint he filed the previous day, this created a credibility issue for the Hearing Officer to resolve (see Matter of Keitt v. Annucci, 231 A.D.3d 1455, 1456, 222 N.Y.S.3d 195 [3d Dept. 2024], lv denied 43 N.Y.3d 906, 2025 WL 1688951 [2025], 261 N.E.3d 964;  Matter of Smith v. Annucci, 217 A.D.3d 1306, 1306, 191 N.Y.S.3d 840 [3d Dept. 2023]).

Petitioner's procedural challenges, including those pertaining to employee assistance, review of video evidence and alleged intimidation by the Hearing Officer regarding the presentation of a witness, are unpreserved for our review as they were not timely raised at the hearing or on administrative review (see Matter of Williams v. Martuscello, 241 A.D.3d 1660, 1661, 242 N.Y.S.3d 120 [3d Dept. 2025];  Matter of Pleasant v. Shope, 233 A.D.3d at 1158, 224 N.Y.S.3d 196;  Matter of Allen v. Goord, 4 A.D.3d 635, 637, 771 N.Y.S.2d 736 [3d Dept. 2004]).  To the extent that petitioner alleges discriminatory treatment and conduct by correctional facility staff, such issues are more appropriately raised through the grievance process (see generally Matter of Wilson v. Annucci, 205 A.D.3d 1163, 1164–1165, 169 N.Y.S.3d 172 [3d Dept. 2022];  Matter of Govia v. New York State Dept. of Corr. & Community Supervision, 171 A.D.3d 1323, 1324–1325, 98 N.Y.S.3d 650 [3d Dept. 2019]).

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

Garry, P.J., Reynolds Fitzgerald, Ceresia, Powers and Corcoran, JJ., concur.