IN RE: Jerome Mack (2026)

MEMORANDUM AND JUDGMENT

DANIEL F. MARTUSCELLO III, as

Commissioner of Corrections

Calendar Date:  October 9, 2026

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 the Superintendent of Shawangunk Correctional Facility finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner, an incarcerated individual, was charged in a misbehavior report with making false statements and obstructing visibility.  According to the report, in June 2025, petitioner made a complaint pursuant to the Prison Rape Elimination Act (see 34 USC §§ 30301–30309 [hereinafter PREA] ) claiming that a correction officer had refused to put petitioner on the list to attend the law library because he had placed a sheet covering the front of his cell.  Petitioner claimed that he told the correction officer that he was naked, and that the correction officer responded, “I don't care,” and then pulled down the blanket and stared at petitioner's naked body in a way that made him feel uncomfortable.  A subsequent investigation, including review of fixed video footage and footage from a body-worn camera assigned to that correction officer, revealed that the alleged misconduct by the correction officer did not occur and that petitioner knowingly submitted a fraudulent claim of staff misconduct;  specifically, that petitioner never stated that he was naked and that the correction officer did not pull the sheet down and stare into petitioner's cell.  Following a tier II disciplinary hearing, petitioner was found guilty of both charges, and the determination was affirmed upon administrative appeal.  This CPLR article 78 proceeding ensued.

We confirm.  The misbehavior report, hearing testimony and video of the incident provide substantial evidence supporting the determination of guilt (see Matter of Dorcinvil v. Miller, 211 AD3d 1205, 1205–1206 [3d Dept 2022];  Matter of Stevens v. Oscar, 199 AD3d 1149, 1149 [3d Dept 2021];  Matter of Kalwasinski v. Venettozzi, 152 AD3d 853, 853 [3d Dept 2017];  Matter of Brown v. Fischer, 120 AD3d 1517, 1517 [3d Dept 2014] ).  Petitioner's contention that the misbehavior report was written in retaliation for the PREA complaint created a credibility issue for the Hearing Officer to resolve (see e.g. Matter of Belgrave v. Martuscello, 243 AD3d 1106, 1108 [3d Dept 2025];  Matter of Telesford v. Annucci, 145 AD3d 1304, 1305 [3d Dept 2016] ).

Petitioner's contention, relying on Correction Law § 138(7), that he should not have been charged in a misbehavior report until facility staff made efforts at de-escalation is unavailing.  “That provision contains a recent legislative policy choice, enacted in combination with restrictions on segregated confinement, that ‘[d]e-escalation,’ among other non-disciplinary interventions, is among the ‘the preferred methods of responding to misbehavior’ except where non-disciplinary interventions have failed or in certain outlined circumstances” (Matter of Salley v. McGuinness, 234 AD3d 1197, 1198–1199 [3d Dept 2025] [footnote omitted], quoting Correction Law § 138[7], as added by L 2021, ch 93, § 6, [eff Mar. 31, 2022] ).  This provision, however, does not shield an incarcerated individual from being charged in a misbehavior report where, as here, he intentionally filed a false misconduct report resulting in an internal and unnecessary investigation (see Matter of Salley v. McGuinness, 234 AD3d at 1199).

As to petitioner's procedural contentions, we reject his claim that the Hearing Officer improperly denied all of his requested witnesses, as their testimony would have been irrelevant, because they did not witness the incident, or redundant of other testimony provided (see Matter of Carzoglio v. Annucci, 216 AD3d 1272, 1273 [3d Dept 2023];  Matter of Walton v. Annucci, 181 AD3d 1085, 1087 [3d Dept 2020] ).  Given the underlying factual circumstances and seriousness of the charges, we discern no abuse of discretion in designating the misbehavior report as a tier II classification, as “it is the function of the review officer, based upon the seriousness of the charges and the appropriate corresponding penalty in the event the charges are substantiated, to determine the tier classification” (Matter of Youngs v. McGuiness, 234 AD3d 1224, 1225 [3d Dept 2025] [internal quotation marks and citations omitted] ).  Finally, nothing in the record before us supports petitioner's claim that the Hearing Officer was biased (see e.g. Matter of Morrison v. Wolcott, 251 AD3d 1313, 1315 [3d Dept 2026] ).  To the extent that any of petitioner's remaining contentions are properly before us, they have been considered and rejected as without merit.

Garry, P.J., Reynolds Fitzgerald, Ceresia, McShan and Ryba, JJ., concur.

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