IN RE: Jeffrey A. NELSON (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 respondent finding petitioner guilty of violating certain prison disciplinary rules.

While being escorted from the facility's medical room back to his cell following a callout, petitioner turned, swung his left elbow and attempted to strike one of the escorting correction officers, resulting in the use of force and a delay of feed-up procedures.  As a result of this incident, petitioner was charged with attempting to assault staff, violating facility movement procedures, interfering with an employee and engaging in violent conduct.  Following a tier III disciplinary hearing, petitioner was found guilty as charged, and that determination was affirmed upon administrative review.  This CPLR article 78 proceeding ensued.

We confirm.  The misbehavior report, the hearing testimony, the video of the incident and the confidential documentary evidence submitted for in camera review provide substantial evidence to support the determination of guilt (see Matter of Scott v. Annucci, 164 A.D.3d 1553, 1553, 84 N.Y.S.3d 279 [2018];  Matter of Land v. Annucci, 156 A.D.3d 1103, 1104, 66 N.Y.S.3d 726 [2017];  Matter of Hubbard v. Annucci, 148 A.D.3d 1381, 1382, 48 N.Y.S.3d 858 [2017] ).  Petitioner's claim that he was not the individual depicted in the video of the incident, as well as his contentions that the correction officers assaulted him without provocation and then filed a false misbehavior report, presented a credibility determination for the Hearing Officer to resolve (see Matter of Scott v. Annucci, 164 A.D.3d at 1553, 84 N.Y.S.3d 279;  Matter of Land v. Annucci, 156 A.D.3d at 1104, 66 N.Y.S.3d 726).

Turning to petitioner's procedural contentions, petitioner was not improperly denied the right to call witnesses.  The civilian nurse from whom petitioner requested testimony refused to testify, and the Hearing Officer personally ascertained that the refusal was genuine (see Matter of Lopez v. Annucci, 146 A.D.3d 1262, 1263, 45 N.Y.S.3d 700 [2017];  Matter of Lee v. Goord, 36 A.D.3d 1176, 1177, 827 N.Y.S.2d 373 [2007] ).  In addition, the Hearing Officer properly denied petitioner's request to call as a witness an Office of Mental Health employee regarding petitioner's mental health, as confidential testimony was taken on that subject pursuant to agency policy (see Matter of Canalas Sanchez v. Annucci, 126 A.D.3d 1194, 1194, 3 N.Y.S.3d 631 [2015];  Matter of Fero v. Prack, 108 A.D.3d 996, 997, 969 N.Y.S.2d 253 [2013];  Matter of Freeman v. Fischer, 54 A.D.3d 1140, 1140, 863 N.Y.S.2d 851 [2008] ).  Finally, contrary to petitioner's contention that the Hearing Officer was biased, the record reflects that the hearing was conducted in a fair, deliberative and impartial manner, and we find that the determination of guilt flowed from the substantial evidence adduced at the hearing rather than from any alleged bias (see Matter of Safford v. Annucci, 144 A.D.3d 1271, 1272–1273, 46 N.Y.S.3d 226 [2016], lv denied 29 N.Y.3d 901, 2017 WL 1094364 [2017] ).  To the extent that petitioner's remaining contentions are properly before us, we have reviewed them and find them to be without merit.

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

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