IN RE: Mark BAXTER (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.

Upon responding to a call for assistance in the facility's lobby, a correction officer was pushed onto a bench by petitioner and another inmate who were fighting. Although the correction officer's initial attempts to restrain petitioner were unsuccessful, the correction officer used a body hold to restrain petitioner and then ultimately subdued him with the use of mechanical restraints. As a result of this incident, petitioner was charged in a misbehavior report with assaulting an inmate, engaging in violent conduct, fighting and refusing a direct order. Following a tier III disciplinary hearing, petitioner was found guilty of engaging in violent conduct, fighting and refusing a direct order.¹ On administrative appeal, the determination was modified by dismissing the fighting charge but otherwise affirmed. Petitioner then commenced this CPLR article 78 proceeding challenging the determination.

Initially, respondent concedes and we agree that substantial evidence does not support that part of the determination finding petitioner guilty of refusing a direct order (see Matter of Medina v. Five Points Corr. Facility, 153 A.D.3d 1471, 1472, 61 N.Y.S.3d 381 [2017]; Matter of Newman v. Department of Corr. Servs., 110 A.D.3d 1309, 1310, 973 N.Y.S.2d 448 [2013]; Matter of Pulecio v. Fischer, 109 A.D.3d 1068, 1069, 971 N.Y.S.2d 380 [2013], lv denied 22 N.Y.3d 858, 2014 WL 112692 [2014]). However, inasmuch as no loss of good time was imposed and petitioner has already served the penalty, the matter need not be remitted for a reassessment of the penalty (see Matter of George v. Annucci, 166 A.D.3d 1157, 1158, 87 N.Y.S.3d 656 [2018]; Matter of Lewis v. Annucci, 156 A.D.3d 1015, 1016, 66 N.Y.S.3d 82 [2017]).

With regard to the remaining charge of engaging in violent conduct, the misbehavior report and testimony at the hearing, including the testimony from the correction officer who responded to the incident and authored the misbehavior report, provide substantial evidence to support the determination of guilt (see Matter of Townsend v. Noeth, 170 A.D.3d 1353, 1353, 95 N.Y.S.3d 654 [2019]; Matter of Tigner v. Annucci, 147 A.D.3d 1138, 1139, 45 N.Y.S.3d 821 [2017]; Matter of Francis v. Prack, 107 A.D.3d 1192, 1192–1193, 966 N.Y.S.2d 616 [2013]). The varying testimonial narratives of the incident from petitioner and his inmate witness presented credibility issues for the Hearing Officer to resolve (see Matter of Scott v. Annucci, 164 A.D.3d 1553, 1553, 84 N.Y.S.3d 279 [2018]; Matter of Ocasio v. Bullis, 162 A.D.3d 1424, 1425, 80 N.Y.S.3d 505 [2018]; Matter of Caraway v. Annucci, 144 A.D.3d 1296, 1297, 45 N.Y.S.3d 221 [2016], lv denied 29 N.Y.3d 903, 2017 WL 1223645 [2017]). Finally, inasmuch as the fighting charge was dismissed on administrative appeal, petitioner's claim that he was improperly denied the right to call as a witness the unidentified inmate that he was allegedly fighting to provide testimony with respect to that charge is moot (see Matter of Funches v. State of New York Dept. of Corr. & Community Supervision, 163 A.D.3d 1390, 1391, 80 N.Y.S.3d 742 [2018], lv dismissed 32 N.Y.3d 1140, 92 N.Y.S.3d 177, 116 N.E.3d 661 [2019]; Matter of Polite v. Goord, 49 A.D.3d 944, 944, 853 N.Y.S.2d 211 [2008]).

ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of refusing a direct order; petition granted to that extent and respondent is directed to expunge all references to this charge from petitioner's institutional record; and, as so modified, confirmed.

FOOTNOTES

1.   The record reflects that the charge of assaulting an inmate was dismissed at some point prior to the commencement of the hearing.

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