IN RE: Aaron Isaiah YOUNG

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IN RE: Aaron Isaiah YOUNG, Petitioner, v. Albert PRACK, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

Decided: September 22, 2016

Before: McCARTHY, J.P., EGAN JR., LYNCH, CLARK and AARONS, JJ. Aaron Isaiah Young, Ossining, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

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.

Petitioner was charged in a misbehavior report with assaulting staff, refusing a direct order, engaging in violent conduct, creating a disturbance and making threats. The misbehavior report alleged that, while being escorted by a correction officer, petitioner refused to follow an order to keep his hands in his pockets and his head facing straight forward, and he suddenly turned and attempted to strike the officer, initiating a physical altercation that continued until responding staff arrived. The misbehavior report further alleged that, during the altercation, petitioner failed to comply with directives to stop resisting the officers' attempts to bring him under their control. A tier III disciplinary hearing resulted in petitioner being found guilty of three of the charges-assaulting staff, refusing a direct order and engaging in violent conduct. The determination was affirmed on administrative appeal, and petitioner then commenced this CPLR article 78 proceeding.

We confirm. Substantial evidence supporting the determination is provided by the misbehavior report, together with the testimony of the officer involved in the incident, an officer who witnessed the start of the incident and two officers who arrived while the incident was ongoing (see Matter of Hyatt v. Annucci, 141 AD3d 977, 978 [2016]; Matter of Boyd v. Prack, 136 AD3d 1136, 1136 [2016]; Matter of Blocker v. Fischer, 107 A.D.3d 1285, 1286 [2013] ). Petitioner's contention that the officer assaulted him first and did so in retaliation for information that he had provided to another staff member presented a credibility issue for the Hearing Officer to resolve (see Matter of Medina v. Annucci, 141 AD3d 1052, 1053 [2016]; Matter of Lashway v. Fischer, 91 A.D.3d 1239, 1239–1240 [2012], lv denied 19 N.Y.3d 805 [2012]; Matter of Reynoso v. Fischer, 73 A.D.3d 1315, 1316 [2010] ).

Petitioner argues that the Hearing Officer failed to make a sufficient inquiry into the reasons why his five inmate witnesses—all of whom executed witness refusal forms—refused to testify. This issue is “unpreserved for our review ․ in light of [petitioner's] failure to object or request that the Hearing Officer make further inquiry” (Matter of Gomez v. Cunningham, 137 A.D.3d 1432, 1433 [2016]; see Matter of Geraci v. Annucci, 131 A.D.3d 767, 768 [2015]; Matter of Hill v. Fischer, 69 A.D.3d 1103, 1103 [2010] ). Petitioner's further assertion that he did not receive witness interview form 2176 is unavailing since the Hearing Officer discussed the form near the end of the hearing and read it into the record, without further request or objection by petitioner (see generally Matter of Dancy v. Goord, 58 A.D.3d 922, 923 [2009]; Matter of Gray v. Selsky, 37 A.D.3d 890, 890 [2007] ). Petitioner's remaining arguments have been considered and are either unpreserved or lack merit.

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

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