Todd v. Annucci

210 A.D.3d 1165

177 N.Y.S.3d 781

In the Matter of Lavelle TODD, Petitioner,

v.Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.

534597

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

Calendar Date: October 7, 2022

Decided and Entered: November 3, 2022

Lavelle Todd, Malone, petitioner pro se.

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

Before: Garry, P.J., Lynch, Pritzker, Reynolds Fitzgerald and Fisher, JJ.

MEMORANDUM AND JUDGMENT

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, entered in Albany County) to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.

Following a fight involving multiple incarcerated individuals in the prison yard, petitioner was charged in a misbehavior report with refusing a direct order, fighting, engaging in violent conduct, creating a disturbance and violating movement regulations. At the conclusion of a tier III disciplinary hearing, petitioner was found guilty of all charges. Upon administrative appeal, other than dismissing the charge of violating movement regulations, the determination was affirmed. This CPLR article 78 proceeding ensued.

We confirm. Contrary to petitioner's contention, the misbehavior report, which states that petitioner was observed exchanging punches with other incarcerated individuals and refused direct orders to get on the ground until chemical agents were deployed, the video evidence and testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Rivera v. Annucci, 160 A.D.3d 1273, 1273, 71 N.Y.S.3d 909 [3d Dept. 2018] ; Matter of McLeod v. Fischer, 122 A.D.3d 1037, 1037–1038, 994 N.Y.S.2d 737 [3d Dept. 2014] ; Matter of Leslie v. Fischer, 107 A.D.3d 1264, 1265, 967 N.Y.S.2d 243 [3d Dept. 2013] ). Petitioner's denial that he was involved in the fighting created a credibility issue for the Hearing Officer to resolve (see Matter of Barnes v. Venettozzi, 207 A.D.3d 969, 970, 172 N.Y.S.3d 775 [3d Dept. 2022] ; Matter of Spencer v. Annucci, 179 A.D.3d 1372, 1373, 117 N.Y.S.3d 745 [3d Dept. 2020] ).

Turning to petitioner's procedural objections, we are unpersuaded that the misbehavior report, despite not specifically identifying with whom petitioner fought, was not detailed enough for him to prepare a defense (see Matter of Grant v. Capra, 200 A.D.3d 1443, 1443–1444, 155 N.Y.S.3d 835 [3d Dept. 2021] ; Matter of Davis v. Goord, 302 A.D.2d 836, 837, 754 N.Y.S.2d 605 [3d Dept. 2003] ; see also 7 NYCRR 251–3.1 [c]). Further, we note that the incarcerated individuals present at the time of the incident all identified themselves on a body camera video viewed by petitioner at the hearing, giving petitioner ample opportunity to call any of them as witnesses. To that end, the record reflects that petitioner not only did not request any...