IN RE: Zebadiah HART (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 the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with refusing a direct order, fighting, violent conduct and creating a disturbance.  According to the report, its author responded to a disturbance in the facility yard and observed petitioner attempting to “reengage in violent conduct” with two other inmates.  Petitioner refused several orders to stop and physical force became necessary to effect compliance.  Following a tier III disciplinary hearing, petitioner was found guilty of refusing a direct order, but not guilty of the remaining charges.  This determination was upheld on administrative appeal, and this CPLR article 78 proceeding ensued.

We confirm.  The misbehavior report, video footage of the yard and documentary evidence provide substantial evidence to support the determination of guilt (see Matter of Rivera v. Annucci, 160 A.D.3d 1273, 1273, 71 N.Y.S.3d 909 [2018];  Matter of King v. Annucci, 155 A.D.3d 1145, 1145, 62 N.Y.S.3d 831 [2017] ).  Contrary to petitioner's contention, the misbehavior report was sufficiently detailed to give him notice of the charges and enable him to prepare a defense (see Matter of Ortiz v. Annucci, 163 A.D.3d 1383, 1384, 80 N.Y.S.3d 746 [2018];  Matter of Brown v. Venettozzi, 162 A.D.3d 1434, 1435, 81 N.Y.S.3d 243 [2018] ).

We reject petitioner's contention that he was not provided adequate employee assistance.  Initially, the requirement that a disciplinary hearing cannot commence until 24 hours after the inmate's initial meeting with the employee assistant (see 7 NYCRR 254.6[a][1] ) was satisfied here, as the record reflects that an employee assistant initially met with petitioner five days before the hearing (see Matter of Readdon v. Selsky, 272 A.D.2d 697, 698, 708 N.Y.S.2d 484 [2000] ).  At the hearing, the Hearing Officer noted that the assistant had provided petitioner with some but not all of the documents that he had requested, and petitioner objected that the assistant was not one of the employees that he had requested to assist him.  The Hearing Officer adjourned the hearing in order to obtain the remaining documents for petitioner and to assign him an assistant that he had requested.  When the hearing resumed, petitioner affirmed that he had met with the assistant and had been provided all the documents that he had requested, and he raised no further objection as to his employee assistance.  Inasmuch as any defects in his employee assistance were remedied by the Hearing Officer, and petitioner has not demonstrated that he was prejudiced by said defects, the record does not establish that he was denied adequate employee assistance (see Matter of Gulifield v. Annucci, 164 A.D.3d 1001, 1003, 83 N.Y.S.3d 363 [2018];  Matter of Harris v. Annucci, 145 A.D.3d 1293, 1294, 44 N.Y.S.3d 240 [2016] ).  Finally, the record does not reveal that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Swinton v. Venettozzi, 164 A.D.3d 1584, 1585, 81 N.Y.S.3d 918 [2018];  Matter of Lebron v. Annucci, 163 A.D.3d 1387, 1388, 77 N.Y.S.3d 897 [2018] ).

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

Garry, P.J., Egan Jr., Clark, Aarons and Rumsey, JJ., concur.