Matter of Garrow v. Annucci , 35 N.Y.S.3d 662 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: July 28, 2016 521085
________________________________
In the Matter of BENJAMIN
GARROW,
Petitioner,
v
MEMORANDUM AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
Commissioner of Corrections
and Community Supervision,
et al.,
Respondents.
________________________________
Calendar Date: June 6, 2016
Before: Peters, P.J., McCarthy, Rose, Devine and Mulvey, JJ.
__________
Benjamin Garrow, Attica, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Kathleen M.
Treasure of counsel), for respondents.
__________
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 an interview with a correction officer regarding a
complaint that petitioner had filed, petitioner accused other
correction officers of discussing his crimes of conviction with
inmates and threatened to inflict serious harm upon a particular
correction officer, prompting prison staff to place petitioner
within mechanical restraints and secure him within a holding pen.
Thereafter, petitioner was charged in a misbehavior report with
making threats and conduct involving threats of violence.
-2- 521085
Following a tier III disciplinary hearing, petitioner was found
guilty of the charges. On administrative appeal, that
determination was upheld. This CPLR article 78 proceeding
ensued.
We confirm. The detailed misbehavior report and the
hearing testimony of the correction officer who was involved in
the incident and authored that report constitute substantial
evidence supporting the determination of guilt (see Matter of
Toney v Goord, 26 AD3d 613, 614 [2016]; Matter of Bookman v
Fischer, 99 AD3d 1127, 1128 [2012]). Petitioner's claim that the
author of the misbehavior report testified falsely at the hearing
and that the report was written in retaliation for a grievance
that petitioner had previously filed presented credibility issues
for the Hearing Officer to resolve (see Matter of Clark v
Fischer, 120 AD3d 1468, 1469 [2014], lv denied 24 NY3d 912
[2015]; Matter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013],
lv denied 21 NY3d 865 [2013]). In addition, we are unpersuaded
by petitioner's contention that the hearing was not timely
commenced. Where an inmate is confined in a special housing unit
pending a disciplinary hearing, the hearing must commence within
seven days (see 7 NYCRR 251-5.1 [a]), although the day from which
the reckoning is made is excluded from the calculation (see
General Construction Law § 20). As the record establishes that
the incident occurred, the misbehavior report was prepared and
petitioner was confined on September 11, 2014, and the hearing
commenced on September 18, 2014, the hearing was commenced within
the required seven days (see 7 NYCRR 251-5.1 [a]; Matter of Rush
v Bezio, 79 AD3d 1548, 1549 [2010]; Matter of Infante v Selsky,
299 AD2d 612, 613 [2002]). We have considered petitioner's
remaining arguments and find that they are either unpreserved for
our review or are lacking in merit.
Peters, P.J., McCarthy, Rose, Devine and Mulvey, JJ.,
concur.
-3- 521085
ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.
ENTER:
Robert D. Mayberger
Clerk of the Court