IN RE: Francisco SANTOS (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 finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with fighting, violent conduct, assaulting an incarcerated individual, possessing a weapon, creating a disturbance and refusing to obey a direct order.  According to the report, petitioner was observed by a correction officer fighting with another incarcerated individual and making a slashing motion toward that individual's head and face.¹  The officer gave several orders to the combatants to stop, which were ignored, and the officer then resorted to using pepper spray to end the altercation.  The officer then observed petitioner drop an icepick type of weapon on the floor that was recovered by another officer.  Following a tier III disciplinary hearing, petitioner was found not guilty of assaulting an incarcerated individual and creating a disturbance, but guilty of the remaining charges.  That determination was affirmed upon administrative appeal and this CPLR article 78 proceeding ensued.

We confirm.  The misbehavior report, hearing testimony and related documentation provide substantial evidence supporting the finding of guilt (see Matter of James v. Venettozzi, 201 A.D.3d 1288, 1289–1290, 158 N.Y.S.3d 646 [3d Dept. 2022];  Matter of Robinson v. Annucci, 197 A.D.3d 1453, 1454, 153 N.Y.S.3d 690 [3d Dept. 2021]).  Although the Hearing Officer credited the evidence in the record that petitioner was not the initial aggressor in finding him not guilty of creating a disturbance and assault, petitioner continued to fight after being ordered to stop and was observed making a slashing motion toward the other participant and dropping a weapon (see Matter of Mills v. Annucci, 149 A.D.3d 1593, 1594, 52 N.Y.S.3d 809 [4th Dept. 2017];  Matter of Gloster v. Goord, 278 A.D.2d 568, 568–569, 717 N.Y.S.2d 411 [3d Dept. 2000], appeal dismissed 96 N.Y.2d 825, 729 N.Y.S.2d 444, 754 N.E.2d 204 [2001]).  The contrary testimony of petitioner and his witnesses presented credibility issues for the Hearing Officer to resolve (see Matter of McClary v. Annucci, 189 A.D.3d 1812, 1813, 133 N.Y.S.3d 925 [3d Dept. 2020], lv denied 37 N.Y.3d 905, 2021 WL 3925878 [2021];  Matter of Beltre v. Rodriguez, 185 A.D.3d 1370, 1370, 126 N.Y.S.3d 423 [3d Dept. 2020]).

Turning to petitioner's procedural objections, we reject his contention that he was improperly denied certain witnesses.  One of his requested witnesses, an incarcerated individual who had not previously agreed to testify, signed a witness refusal form with the reason for the refusal (see Matter of Cortorreal v. Annucci, 28 N.Y.3d 54, 59–60, 41 N.Y.S.3d 723, 64 N.E.3d 952 [2016];  Matter of Walton v. Annucci, 181 A.D.3d 1085, 1086–1087, 121 N.Y.S.3d 386 [3d Dept. 2020]).  Petitioner also requested testimony from the unnamed correction officer who placed him in handcuffs.  The Hearing Officer informed petitioner that, despite his inquiries, he was unable to identify who had handcuffed petitioner.  Moreover, several correction officers testified that they did not know who had placed petitioner in handcuffs, and a sergeant testified that the facility policy is that, unless restraints are placed on an incarcerated individual by force, the identity of the officer who applied the restraint is not documented.  Under these circumstances, “the Hearing Officer made a diligent effort to identify the requested witness” (Matter of McClough v. Fischer, 118 A.D.3d 1228, 1229, 987 N.Y.S.2d 633 [3d Dept. 2014];  see Matter of Harriott v. Annucci, 170 A.D.3d 1294, 1296, 95 N.Y.S.3d 614 [3d Dept. 2019]).  Petitioner's contention that he was improperly denied the testimony of his employee assistant is unpreserved for review, as the record reflects that he did not ask for this witness or raise an objection to the lack of the assistant's testimony (see Matter of Davis v. Annucci, 140 A.D.3d 1432, 1433, 36 N.Y.S.3d 896 [3d Dept. 2016], appeal dismissed 28 N.Y.3d 1109, 45 N.Y.S.3d 352, 68 N.E.3d 77 [2016]).  Although petitioner argues that he was improperly denied the misbehavior reports of the other incarcerated individuals involved and certain medical records of the correction officer that had authored his misbehavior report, the record reflects that petitioner failed to request these documents from his employee assistant or during the hearing (see Matter of Mullins v. Annucci, 177 A.D.3d 1061, 1062, 112 N.Y.S.3d 329 [3d Dept. 2019];  Matter of Harris v. Venettozzi, 167 A.D.3d 1127, 1128, 89 N.Y.S.3d 414 [3d Dept. 2018]).

Contrary to petitioner's contention, the misbehavior report was sufficiently detailed to provide him with notice of the charges against him and afford him an opportunity to prepare a meaningful defense (see Matter of Devaughn v. Heff, 189 A.D.3d 1803, 1804, 133 N.Y.S.3d 922 [3d Dept. 2020];  Matter of Heard v. Annucci, 155 A.D.3d 1166, 1167, 62 N.Y.S.3d 819 [3d Dept. 2017]).  Further, “although petitioner claims that portions of the hearing were not electronically recorded, the hearing transcript does not substantiate this claim nor disclose the existence of gaps in the testimony that preclude meaningful review” (Matter of Boyd v. Prack, 136 A.D.3d 1136, 1137, 24 N.Y.S.3d 457 [3d Dept. 2016];  see Matter of Sanders v. Annucci, 128 A.D.3d 1156, 1157, 7 N.Y.S.3d 733 [3d Dept. 2015], appeal dismissed 26 N.Y.3d 964, 18 N.Y.S.3d 600, 40 N.E.3d 578 [2015]).  Finally, based upon our review of the record, we conclude “that the hearing was conducted in a fair and impartial manner and that the determination of guilt flowed from the evidence presented and not from any alleged bias on the part of the Hearing Officer” (Matter of Manwaring v. Rodriguez, 205 A.D.3d 1200, 1201, 165 N.Y.S.3d 920 [3d Dept. 2022] [internal quotation marks and citation omitted];  see Matter of Fulton v. Capra, 199 A.D.3d 1139, 1141, 156 N.Y.S.3d 581 [3d Dept. 2021]).  To the extent that petitioner's remaining claims are properly before us, including his challenge to the hearing extension, they have been reviewed and found to be without merit.

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

FOOTNOTES

1.   According to a Use of Force Report filed by another correction officer, a third incarcerated individual was also involved in the altercation.

Reynolds Fitzgerald, J.

Egan Jr., J.P., Pritzker, Ceresia and Fisher, JJ., concur.