IN RE: David NEWKIRK (2022)

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 Acting Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with engaging in violent conduct, assaulting staff, creating a disturbance and committing an unhygienic act.  The correction officer who authored the report alleged that, while he was conducting a facility count, he observed petitioner standing in his cube urinating in a container and, when he ordered petitioner to cease doing so, petitioner kicked a chair that struck the officer in the legs, causing him to fall toward petitioner.  The officer held petitioner in a body hold as they fell and, while they were engaged, petitioner struck the officer in the back of the head and pushed his thumb into the officer's eye.  The officer was eventually able to separate himself from petitioner, at which point he directed petitioner to sit on his bed and petitioner complied.  Following a tier III disciplinary hearing at which the officer testified consistent with his report and petitioner offered a contrary account, petitioner was found guilty of the charges and a penalty was imposed, and the determination was upheld on administrative appeal.  Petitioner then commenced this CPLR article 78 proceeding.

We confirm.  The misbehavior report, hearing testimony of its author who was involved in the incident and other documentary evidence provide substantial evidence to support the determination of guilt.  Petitioner's contrary testimony and that of his witnesses, three incarcerated persons housed in adjacent cubes, presented a credibility issue for the Hearing Officer, who expressly credited the testimony of the officer involved (see Matter of Gonzalez v. Annucci, 199 A.D.3d 1146, 1147, 156 N.Y.S.3d 588 [3d Dept. 2021];  Matter of Killimayer v. Annucci, 199 A.D.3d 1151, 1151, 156 N.Y.S.3d 586 [3d Dept. 2021]).  Further, we find that petitioner was not impermissibly denied his right to call witnesses on his behalf.  The Hearing Officer heard from three of petitioner's witnesses who petitioner acknowledged had corroborated his account of the incident.  When asked why the Hearing Officer should hear the testimony of the fourth witness, petitioner conceded that it was unnecessary to do so.  Thus, the determination of the Hearing Officer that the testimony of the additional witness would have been redundant was proper (see Matter of Steele v. Annucci, 178 A.D.3d 1226, 1227, 111 N.Y.S.3d 917 [3d Dept. 2019];  Matter of Cruz v. Annucci, 152 A.D.3d 1100, 1102, 59 N.Y.S.3d 820 [3d Dept. 2017];  Matter of Encarnacion v. Annucci, 150 A.D.3d 1581, 1582, 55 N.Y.S.3d 516 [3d Dept. 2017], lv denied 30 N.Y.3d 903, 2017 WL 4697399 [2017]).  Petitioner's remaining contentions have been examined and found to be without merit.

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

Garry, P.J., Egan Jr., Clark, Pritzker and McShan, JJ., concur.