IN RE: Oscar FERNANDEZ (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 Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.

Upon investigating a disturbance in a stairwell leading out of the facility's mess hall, petitioner was observed running down that stairwell away from the location where correction officers soon thereafter discovered another inmate bleeding and lying on the ground with a handmade shank-type weapon on the ground next to him.  After the inmate provided a description of his attacker that matched petitioner, petitioner was charged in a misbehavior report with assaulting another inmate, violent conduct, creating a disturbance and possessing a weapon.  Following a tier III disciplinary rehearing,¹ petitioner was found guilty as charged.  That determination was upheld upon administrative review.  This CPLR article 78 proceeding ensued.

Initially, to the extent that petitioner's challenges relate to his July 2016 determination of guilt, that part of his petition is moot because the July 2016 determination was administratively reversed (see Matter of Boykin v. Prack, 137 A.D.3d 1393, 1394, 27 N.Y.S.3d 704 [2016] ).  With regard to the October 2016 determination, the misbehavior report, hearing testimony and documentary evidence provide substantial evidence to support the finding of guilt (see Matter of Davis v. Annucci, 137 A.D.3d 1437, 1438, 27 N.Y.S.3d 291 [2016];  Matter of Caraway v. Goord, 34 A.D.3d 962, 963, 823 N.Y.S.2d 309 [2006] ).  “Although the incident was not witnessed, the circumstantial evidence and the reasonable inferences drawn therefrom provide a sufficient basis for a finding of guilt” (Matter of Flores v. Fischer, 110 A.D.3d 1302, 1303, 973 N.Y.S.2d 485 [2013] [citations omitted], lv denied 22 N.Y.3d 861, 2014 WL 552669 [2014];  see Matter of Howard v. Fischer, 108 A.D.3d 950, 950, 969 N.Y.S.2d 236 [2013];  Matter of Gourdine v. Goord, 18 A.D.3d 1045, 1045–1046, 795 N.Y.S.2d 772 [2005] ).  Moreover, the contrary testimony of petitioner and his inmate witnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of Davis v. Annucci, 137 A.D.3d at 1438, 27 N.Y.S.3d 291;  Matter of Boyd v. Prack, 136 A.D.3d 1136, 1136, 24 N.Y.S.3d 457 [2016] ).

Contrary to petitioner's contention, the misbehavior report was sufficiently specific and provided adequate information to afford petitioner an opportunity to discern his role in the incident and to prepare a meaningful defense (see 7 NYCRR 251–3.1[c];  Matter of Robinson v. Lee, 155 A.D.3d 1169, 1170, 62 N.Y.S.3d 820 [2017];  Matter of King v. Annucci, 155 A.D.3d 1145, 1146, 62 N.Y.S.3d 831 [2017] ).  We further find that petitioner was provided meaningful employee assistance, and he has not demonstrated that he was prejudiced by his assistant's alleged inadequacies.  Except for the confidential inmate injury report and unavailable video of the incident, petitioner was provided with certain documents that he had requested, including a redacted unusual incident report and to/from memoranda, and his employee assistant interviewed his requested witnesses to ascertain whether they would be willing to testify at the hearing (see 7 NYCRR 251–4.2;  compare Matter of Rivera v. Prack, 122 A.D.3d 1226, 1227, 995 N.Y.S.2d 862 [2014] ).  Moreover, petitioner's allegation that his assistant failed to obtain statements from the requested inmate witnesses—all of whom either testified at the hearing or signed witness refusal forms (see Matter of Campos v. Prack, 143 A.D.3d 1020, 1021–1022, 38 N.Y.S.3d 448 [2016] )—prior to the hearing is of no consequence, as those witnesses were not present during the incident and had no firsthand knowledge of the incident (see Matter of Garcia v. Annucci, 154 A.D.3d 1246, 1247–1248, 65 N.Y.S.3d 573 [2017];  Matter of Gonzalez v. Annucci, 149 A.D.3d 1455, 1456, 52 N.Y.S.3d 738 [2017];  Matter of Perretti v. Fischer, 58 A.D.3d 999, 1002, 871 N.Y.S.2d 746 [2009], lv denied 12 N.Y.3d 709, 2009 WL 1259064 [2009] ).  We have considered petitioner's remaining contentions and find them to be either unpreserved for our review or lacking in merit.

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

FOOTNOTES

1.   The July 2016 determination following the first tier III hearing was reversed on administrative appeal, and this rehearing was conducted.

Garry, P.J., McCarthy, Aarons, Rumsey and Pritzker, JJ., concur.