IN RE: Jose MEDINA (2020)

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 certain prison disciplinary rules.

During a random pat frisk, petitioner was suspected of possessing contraband after a correction officer felt a bulge in petitioner's pants.  Before petitioner was strip-frisked, a correction officer directed him to place his hands on the wall.  Petitioner, however, repeatedly took his hands off the wall and reached for his groin area, contrary to the officer's instructions.  Petitioner began struggling, at which point the officer had to use force to restrain him and was eventually able to gain control after receiving assistance from other officers.  As a result of this incident, petitioner was charged in a misbehavior report with engaging in violent conduct, creating a disturbance, refusing a search or frisk and refusing a direct order.  He was found guilty of the charges following a tier III disciplinary hearing.  The determination was later affirmed on administrative appeal, and this CPLR article 78 proceeding ensued.

We confirm.  The detailed misbehavior report, related documentation, hearing testimony and videotape of the incident provide substantial evidence supporting the determination of guilt (see Matter of White v. Prack, 131 A.D.3d 1333, 1334, 16 N.Y.S.3d 786 [2015], lv denied 26 N.Y.3d 920, 2016 WL 699844 [2016];  Matter of Hyatt v. Annucci, 125 A.D.3d 1025, 1025–1026, 1 N.Y.S.3d 583 [2015] ).  Although petitioner maintains that he was improperly denied two inmate witnesses based on respondent Hearing Officer's failure to ascertain the reasons for their refusal to testify, the record reveals that the Hearing Officer properly denied their testimony as irrelevant because they were not present in the strip frisk room where the incident occurred (see Matter of Moise v. Annucci, 168 A.D.3d 1337, 1338–1339, 92 N.Y.S.3d 736 [2019];  Matter of Bonds v. Annucci, 166 A.D.3d 1250, 1251, 89 N.Y.S.3d 730 [2018] ).  Contrary to petitioner's claim that the Hearing Officer was biased, the record reflects that the hearing was conducted in a fair and impartial manner and the determination resulted from the evidence that was adduced at the hearing (see Matter of Haigler v. Lilley, 182 A.D.3d 888, 889–890, 120 N.Y.S.3d 864 [2020];  Matter of Joseph v. Polizzi, 167 A.D.3d 1207, 1208, 90 N.Y.S.3d 335 [2018], lv denied 33 N.Y.3d 903, 2019 WL 1997085 [2019] ).  We have considered petitioner's remaining contentions and find them to be unpersuasive.  Therefore, we find no reason to disturb the determination of guilt.

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

Clark, J.P., Mulvey, Devine, Aarons and Pritzker, JJ., concur.