IN RE: Thomas JACKSON (2019)

MEMORANDUM AND JUDGMENT

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in two misbehavior reports with multiple prison disciplinary violations.  The first misbehavior report charged him with damaging state property, engaging in violent conduct, possessing a weapon, fighting, refusing a direct order and assaulting an inmate.  According to that report, while in the mess hall in the presence of other inmates, petitioner was observed exchanging closed-fist punches and then fighting on the floor with another inmate and initially refused direct orders to stop fighting.  After the fight, a broken spoon handle was discovered on the floor where petitioner had been, and a subsequent medical examination of the other inmate revealed injuries on his neck consistent with those that would have resulted from the use of a weapon.  When petitioner eventually complied with orders to stop fighting, he stood up from the floor and used both of his hands to shove a correction officer in the chest, which caused that officer to fall to the ground and sustain injuries.  As a result of petitioner's confrontation with this officer, he was charged in a second misbehavior report with assaulting staff and engaging in violent conduct.  Following a combined tier III disciplinary hearing, petitioner was found guilty of all charges, and the determination was later affirmed on administrative appeal.  Petitioner then commenced this CPLR article 78 proceeding.

We confirm.  Contrary to petitioner's contention, the misbehavior reports and the testimony of three correction officers involved in the incidents provide substantial evidence to support the determination of guilt (see Matter of Jones v. Annucci, 166 A.D.3d 1174, 1175, 87 N.Y.S.3d 723 [2018];  Matter of Gallo v. Annucci, 164 A.D.3d 1560, 1560–1561, 83 N.Y.S.3d 745 [2018];  Matter of Thousand v. Prack, 139 A.D.3d 1212, 1212, 32 N.Y.S.3d 348 [2016];  Matter of Peoples v. Bezio, 94 A.D.3d 1299, 1300, 942 N.Y.S.2d 676 [2012] ).  Petitioner's contentions that the misbehavior reports were fabricated and written in retaliation for a prior incident that he was involved in presented credibility issues for the Hearing Officer to resolve (see Matter of Harriott v. Annucci, 170 A.D.3d 1294, 1295, 95 N.Y.S.3d 614 [2019];  Matter of Cruz v. Annucci, 152 A.D.3d 1100, 1101, 59 N.Y.S.3d 820 [2017] ).  Similarly, although petitioner contended that a notation on a “go-around list” established that he was in his cell on the morning of the incident, the Hearing Officer was entitled to credit the competing testimony from the correction officers who personally observed petitioner's involvement in the altercation (see generally Matter of Ballard v. Annucci, 170 A.D.3d 1298, 1299–1300, 95 N.Y.S.3d 611 [2019] ).  Moreover, the correction officer who made that go-around list testified that the list was filled out prior to the incident, and petitioner could have asked another officer to be let out of his cell.  Petitioner's remaining contentions, including his assertion that he was denied the right to present certain documentary evidence, have been examined and found to be lacking in merit.

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

Egan Jr., J.P., Lynch, Mulvey, Aarons and Pritzker, JJ., concur.