IN RE: Henry ESPINAL (2019)

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 assaulting staff, engaging in violent conduct, refusing a direct order, violating facility frisk procedures, possessing contraband and interfering with staff.  According to the report, petitioner was observed by a correction officer heading to the recreation yard with a full water bottle.  The officer informed petitioner – incorrectly as it turns out – that only empty water bottles were permitted to be taken into the yard and ordered him to submit to a pat frisk.  During the frisk, petitioner became agitated and belligerent and attempted to kick the officer.  Following a tier III disciplinary hearing, the charge of possessing contraband was dismissed, but petitioner was found guilty of the remaining charges.  On administrative appeal, the determination was modified by dismissing the interfering with staff charge, but otherwise affirmed.  This CPLR article 78 proceeding ensued.

The detailed misbehavior report provides substantial evidence to support the determination (see Matter of Green v. Kirkpatrick, 167 A.D.3d 1138, 1139, 89 N.Y.S.3d 411 [2018], lv denied 32 N.Y.3d 919, 100 N.Y.S.3d 217, 123 N.E.3d 876 [2019];  Matter of Boitschenko v. Annucci, 156 A.D.3d 1066, 1066, 65 N.Y.S.3d 488 [2017] ).  Petitioner's denial of the charges created a credibility determination for the Hearing Officer to resolve (see Matter of Nelson v. Annucci, 172 A.D.3d 1806, 1806, 100 N.Y.S.3d 784 [2019];  Matter of Gonzalez v. Annucci, 168 A.D.3d 1291, 1292, 92 N.Y.S.3d 464 [2019] ).  Moreover, even if petitioner was allowed to bring a full water bottle out to the yard, he was not free to disobey a direct order or behave in a disruptive or violent way (see Matter of Bekka v. Annucci, 168 A.D.3d 1334, 1335, 93 N.Y.S.3d 450 [2019];  Matter of Watson v. Gardner, 156 A.D.3d 1050, 1051, 66 N.Y.S.3d 545 [2017] ).  Petitioner's challenge to the length of time he was confined to the special housing unit is moot, insofar as he has served the entire penalty, which did not include any loss of good time (see Matter of Funches v State of New York Dept. of Corr. & Community Supervision, 163 A.D.3d 1390, 1391, 80 N.Y.S.3d 742 [2018], lv denied 32 N.Y.3d 1140, 92 N.Y.S.3d 177, 116 N.E.3d 661 [2019];  Matter of Bermudez v. Griffin, 142 A.D.3d 1203, 1204, 37 N.Y.S.3d 468 [2016] ).

We agree, however, with petitioner's contention that he was improperly denied evidence consisting of a videotape taken at the time of the incident.  Petitioner requested the videotape from his employee assistant and at the hearing.  Although the Hearing Officer informed petitioner that no videotape existed, the record contains a facility Video Preservation Form indicating that a videotape, taken in the area of the incident on the date in question, was preserved.  Inasmuch as the record does not indicate that the Hearing Officer undertook any measures to ascertain whether the videotape existed, we find that petitioner's request was improperly denied (see Matter of Davison v. Annucci, 169 A.D.3d 1318, 1319, 95 N.Y.S.3d 403 [2019];  Matter of Lewis v. Rivera, 32 A.D.3d 1120, 1121, 821 N.Y.S.2d 678 [2006] ).  Under these circumstances, the appropriate remedy is to remit the matter for a new hearing (see Matter of Davison v. Annucci, 169 A.D.3d at 1319, 95 N.Y.S.3d 403;  Matter of Lewis v. Rivera, 32 A.D.3d at 1121, 821 N.Y.S.2d 678).

ADJUDGED that the determination is annulled, without costs, and matter remitted to respondent for further proceedings not inconsistent with this Court's decision.

Lynch, J.P., Clark, Devine, Aarons and Pritzker, JJ., concur.