IN RE: Raynard CARAWAY (2018)

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 a prison disciplinary rule.

Petitioner was charged in a misbehavior report with making threats, creating a disturbance, refusing a direct order and interfering with an employee.  According to the report, petitioner became agitated over the order in which inmates were being allowed to shower and told a correction officer, “I got people on the outside to take care of you and your family.”  Following a tier III hearing, petitioner was found guilty of making threats, but not guilty of the remaining charges.  The determination was affirmed on administrative appeal, and this CPLR article 78 proceeding ensued.

We confirm.  The misbehavior report and hearing testimony provide substantial evidence to support the determination of guilt (see Matter of Robinson v. Lee, 155 A.D.3d 1169, 1170, 62 N.Y.S.3d 820 [2017];  Matter of Sunkes v. Russo, 153 A.D.3d 994, 995, 56 N.Y.S.3d 915 [2017] ).  The testimony of petitioner and his inmate witnesses that petitioner never threatened the correction officer presented a credibility issue for the Hearing Officer to resolve (see Matter of Ramos v. Annucci, 150 A.D.3d 1510, 1511, 54 N.Y.S.3d 755 [2017];  Matter of Harris v. Annucci, 148 A.D.3d 1385, 1385, 48 N.Y.S.3d 636 [2017] ).  Contrary to petitioner's contention, his retaliation defense was considered by the Hearing Officer, and the fact that this credibility issue was resolved adversely to petitioner does not establish that the Hearing Officer was biased or that petitioner was otherwise denied a fair hearing (see Matter of Gaston v. Annucci, 147 A.D.3d 1131, 1132, 45 N.Y.S.3d 716 [2017];  Matter of Amaker v. Bezio, 98 A.D.3d 1146, 1146, 950 N.Y.S.2d 792 [2012] ).  Finally, we find nothing inconsistent with petitioner being found guilty of making threats, but not guilty of the remaining charges (see Matter of Davis v. Annucci, 137 A.D.3d 1437, 1438, 27 N.Y.S.3d 291 [2016];  Matter of Jackson v. Goord, 8 A.D.3d 852, 853, 778 N.Y.S.2d 565 [2004] ).

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

Garry, P.J., McCarthy, Egan Jr., Lynch and Clark, JJ., concur.