IN RE: Pedro ESTRADA (2021)

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.

During a strip frisk, petitioner, an incarcerated individual, refused to comply with several orders given by a correction officer to spread his buttocks.  When the correction officer activated his alarm to contact his immediate supervisor by radio, petitioner attempted to strike the correction officer in the head with a closed fist.  The correction officer activated his alarm and used pepper spray on petitioner, who continued to resist until additional staff responded and applied physical force to subdue petitioner.  As a result of the incident, petitioner was charged in a misbehavior report with attempting to assault an officer, interfering with an employee, refusing a direct order, creating a disturbance, refusing facility strip frisk procedures and engaging in violent conduct.  Following a tier III disciplinary hearing, a determination of guilt was rendered as to all charges.¹  Upon administrative review, the determination was affirmed, and this CPLR article 78 proceeding ensued.

We confirm.  Initially, petitioner's plea of guilty to the charge of refusing a direct order precludes him from now challenging the evidentiary basis for that charge (see Matter of Lewis v. State of N.Y. Dept. of Corr. & Community Supervision, 193 A.D.3d 1160, 1162, 145 N.Y.S.3d 661 [2021];  Matter of Bouknight v. Annucci, 181 A.D.3d 1079, 1079, 121 N.Y.S.3d 388 [2020]).  As to the remaining charges, the misbehavior report, related documentary evidence submitted for in camera review, and the hearing testimony, including the testimony of the correction officer involved in the incident, provide substantial evidence to support the determination of guilt (see Matter of Ocasio v. Bullis, 162 A.D.3d 1424, 1424, 80 N.Y.S.3d 505 [2018];  Matter of Land v. Annucci, 156 A.D.3d 1103, 1104, 66 N.Y.S.3d 726 [2017];  Matter of Heyliger v. Kirkpatrick, 153 A.D.3d 989, 990, 56 N.Y.S.3d 910 [2017];  Matter of Canzater–Smith v. Venettozzi, 150 A.D.3d 1518, 1518, 54 N.Y.S.3d 223 [2017]).  Petitioner's stated explanations for his behavior, as well as petitioner's assertion that he was assaulted by the correction officers and/or the victim of excessive use of force, presented a credibility issue for the Hearing Officer to resolve (see Matter of Land v. Annucci, 156 A.D.3d at 1104, 66 N.Y.S.3d 726;  Matter of Canzater–Smith v. Venettozzi, 150 A.D.3d at 1518–1519, 54 N.Y.S.3d 223;  Matter of Davis v. Lempke, 148 A.D.3d 1366, 1367, 48 N.Y.S.3d 630 [2017]).  Petitioner's assertion that he was improperly denied the use of a videotape of the underlying incident to defend against the charges is unpreserved, as there was no request made for any such video evidence in the course of the hearing (compare Matter of Hubbard v. Annucci, 154 A.D.3d 1286, 1287, 62 N.Y.S.3d 254 [2017]).  Petitioner's remaining arguments have been considered and, to the extent that they are properly before us, found to be without merit.

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

FOOTNOTES

1.   At the beginning of the hearing, petitioner pleaded guilty to refusing a direct order.

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