Rizzuto v. Melville

210 A.D.3d 1152

177 N.Y.S.3d 778

In the Matter of Alfonso RIZZUTO, Petitioner,

v.T. MELVILLE, as Deputy Superintendent of Security, Eastern Correctional Facility, Respondent.

532536

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: October 7, 2022

Decided and Entered: November 3, 2022

Alfonso Rizzuto, Duryea, Pennsylvania, petitioner pro se.

Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.

Before: Garry, P.J., Lynch, Clark, Aarons and Pritzker, JJ.

MEMORANDUM AND JUDGMENT

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 Eastern Correctional Facility finding petitioner guilty of violating certain prison disciplinary rules.

Following a dispute between petitioner and the head cook at the facility where petitioner was then incarcerated, petitioner was charged in a misbehavior report with creating a disturbance, refusing a direct order, harassment, interfering with an employee and violating mess hall procedures. During the course of the ensuing tier II disciplinary hearing, petitioner was removed from the proceeding due to his disruptive behavior. The Hearing Officer subsequently found petitioner guilty of all charges, and a penalty was imposed. Petitioner's administrative appeal was unsuccessful, prompting him to commence this CPLR article 78 proceeding to challenge respondent's determination.¹

Initially, the Attorney General concedes, and our review of the record confirms, that substantial evidence does not support that part of the determination finding petitioner guilty of interfering with an employee and, hence, it must be annulled (see Matter of Daum v. Sipple, 197 A.D.3d 1461, 1462, 151 N.Y.S.3d 912 [3d Dept. 2021] ). However, because the administrative penalty has been served and no loss of good time was imposed, remittal for a redetermination of the penalty on the remaining charges is not required (see Matter of Abdullah v. Department of Corr. & Community Supervision, 193 A.D.3d 1167, 1168, 145 N.Y.S.3d 659 [3d Dept. 2021] ).

As to the remaining charges, the detailed misbehavior report, together with the testimony of the head cook and other correction officers, constitute substantial evidence to support the finding that petitioner created a disturbance, refused a direct order and harassed the head cook. Specifically, both the misbehavior report and the hearing testimony demonstrated that petitioner, in a "loud" and "boisterous" manner, cursed and yelled at – and was "extremely argumentative" with – the head cook (see e.g. Matter of Grant v. Capra, 200 A.D.3d 1443, 1443, 155 N.Y.S.3d 835 [3d Dept. 2021] ) and, in so doing, caused congestion in the mess hall food line (see 7 NYCRR 270.2 [B][5][iv]; Matter of Kendricks v. Annucci, 207 A.D.3d 968, 969, 170 N.Y.S.3d 520 [3d Dept. 2022] ; Matter of Dove v. Annucci, 190 A.D.3d 1181, 1181, 136 N.Y.S.3d 809 [3d Dept. 2021], lv denied 37 N.Y.3d 909, 2021 WL 4188675 [2021] ; compare Matter of Ramos v. Annucci, 208 A.D.3d 1531, 1531, 175 N.Y.S.3d 140 [3d Dept. 2022] ; Matter of Hogan v. Thompson, 204 A.D.3d 1201, 1202, 164 N.Y.S.3d 537 [3d Dept. 2022] ). Such proof, together with the testimony of an incarcerated individual who was present for the incident, further established that petitioner refused repeated direct orders to "[b]e quiet" and "keep moving." To the extent that petitioner contends that the congestion in the food line was occasioned by a lack of available serving utensils and that "all [he] did was talk nicely" to the head cook, such testimony presented a credibility issue for the Hearing Officer to resolve (see Matter of Killimayer v. Annucci, 199 A.D.3d 1151, 1151, 156 N.Y.S.3d 586 [3d Dept. 2021] ; Matter of McClary v. Annucci, 189 A.D.3d 1812, 1813, 133 N.Y.S.3d 925 [3d Dept. 2020], lv denied 37 N.Y.3d 905, 2021 WL 3925878 [2021] ).

We are similarly persuaded that substantial evidence supports the finding that petitioner violated mess hall procedures. Although the mess hall rules have since been revised, petitioner provided the Hearing Officer with a copy of the then-applicable rules at the disciplinary hearing. Such rules plainly prohibited "[y]elling or loud talking" in the mess hall, thereby belying petitioner's present claim that the misbehavior report failed to provide him with sufficient...