IN RE: Justin T. WOODWARD (2019)

MEMORANDUM AND JUDGMENT

While observing a search of his cell in the presence of other inmates, petitioner started a verbal altercation with the correction officer performing the search, during which petitioner, among other things, became argumentative and belligerent, made various threats and refused a direct order.  Due to his behavior, petitioner was removed from his cell and secured in the shower area, where he continued to make threats.  As a result of this incident, petitioner was charged in a misbehavior report with harassment, making threats, creating a disturbance, refusing a direct order, interfering with an employee and failing to comply with search procedures.  Following a tier III disciplinary hearing, petitioner was found guilty of all charges.  Upon administrative appeal, the determination was affirmed.  Petitioner then commenced this CPLR article 78 to challenge the determination of guilt.

We confirm.  Contrary to petitioner's contention, the detailed misbehavior report and hearing testimony constitute substantial evidence to support the determination of guilt (see Matter of Cosme v. New York State Dept. of Corr. & Community Supervision, 168 A.D.3d 1327, 1328, 92 N.Y.S.3d 745 [2019];  Matter of Osborne v. Venettozzi, 141 A.D.3d 990, 991, 34 N.Y.S.3d 916 [2016];  Matter of Encarnacion v. Goord, 19 A.D.3d 906, 906, 797 N.Y.S.2d 178 [2005] ).  Contrary to petitioner's contention, his behavior, as described in the misbehavior report and testified to by its author and other witnesses at the hearing, is sufficient to constitute harassment (see Matter of Diaz v. Lee, 171 A.D.3d 1382, 1383, 98 N.Y.S.3d 361 [2019];  Matter of Cosme v. New York State Dept. of Corr. & Community Supervision, 168 A.D.3d at 1327–1328, 92 N.Y.S.3d 745;  Matter of Wigfall v. New York State Dept. of Corr. & Community Supervision, 160 A.D.3d 1332, 1333, 75 N.Y.S.3d 341 [2018] ) and interfering with an employee (see 7 NYCRR 270.2[B][8][i];  Matter of Cosme v. New York State Dept. of Corr. & Community Supervision, 168 A.D.3d at 1327–1328, 92 N.Y.S.3d 745;  Matter of Brown v. Goord, 17 A.D.3d 952, 952–953, 793 N.Y.S.2d 636 [2005];  Matter of Readdon v. Mitchell, 210 A.D.2d 710, 710, 621 N.Y.S.2d 935 [1994] ).  The contrary testimony offered by petitioner and his inmate witnesses, as well as petitioner's claim that the search had been ordered in retaliation for a grievance that he had filed, raised credibility issues for the Hearing Officer to resolve (see Matter of Genyard v. Annucci, 136 A.D.3d 1091, 1091, 23 N.Y.S.3d 755 [2016];  Matter of Tarbell v. Lamora, 108 A.D.3d 899, 899, 968 N.Y.S.2d 412 [2013] ).

Petitioner claims that he was deprived of his conditional right to call a witness because the Hearing Officer failed to properly investigate the reason why his requested inmate witness refused to testify.  We are not persuaded.  “Where, as here, an inmate initially agrees to testify and later refuses, ‘it is incumbent upon the Hearing Officer to conduct a personal inquiry unless a genuine reason for the refusal is apparent from the record and the Hearing Officer makes a sufficient inquiry into the facts surrounding the refusal to ascertain its authenticity’ ” (Matter of Radcliffe v. Annucci, 157 A.D.3d 1177, 1178, 69 N.Y.S.3d 758 [2018], quoting Matter of Banks v. Annucci, 146 A.D.3d 1267, 1268, 45 N.Y.S.3d 706 [2017] [internal quotation marks, brackets, ellipses and citations omitted];  see Matter of Abdur–Raheem v. Prack, 98 A.D.3d 1152, 1153, 950 N.Y.S.2d 800 [2012];  Matter of Hill v. Selsky, 19 A.D.3d 64, 67, 795 N.Y.S.2d 794 [2005] ).  Although “an inmate's refusal that is based upon a desire not to be involved is not adequate to excuse a personal inquiry by the Hearing Officer” (Matter of Banks v. Annucci, 146 A.D.3d at 1268, 45 N.Y.S.3d 706 [internal quotation marks and citations omitted] ), the record reflects that the Hearing Officer conducted the requisite personal inquiry and explained to petitioner that the witness did not want to testify because, in addition to not wanting to be involved, he could not recall the incident in detail and was being paroled (compare Matter of Joseph v. LaClair, 112 A.D.3d 1023, 1024, 975 N.Y.S.2d 925 [2013];  Matter of Abdur–Raheem v. Prack, 98 A.D.3d at 1153, 950 N.Y.S.2d 800;  Matter of Hill v. Selsky, 19 A.D.3d at 67, 795 N.Y.S.2d 794).

We also find that, contrary to petitioner's claim, there is no indication that the Hearing Officer was biased or that the determination flowed from any alleged bias (see e.g. Matter of Hyson v. Annucci, 171 A.D.3d 1339, 1340, 97 N.Y.S.3d 794 [2019] ).  Finally, we do not find the penalty that was assessed to be so severe as to shock one's sense of fairness (see Matter of McClough v. Fischer, 118 A.D.3d 1228, 1229, 987 N.Y.S.2d 633 [2014];  Matter of White v. Fischer, 108 A.D.3d 891, 892, 968 N.Y.S.2d 737 [2013], lv denied 22 N.Y.3d 853, 2013 WL 5658361 [2013] ).  Petitioner's remaining contentions, to the extent they are properly before us, 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.