Filed Date: 7/25/2013
Status: Precedential
Modified Date: 10/19/2024
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Franklin
Petitioner, a prison inmate, was charged in a misbehavior report with violent conduct, committing an unhygienic act, harassment, threats and a mess hall violation. According to the report, after a correction officer placed a cup of coffee on petitioner’s “feed up hatch,” petitioner intentionally used his breakfast tray to push the coffee off the hatch so that it spilled onto the officer and the floor. Following a tier III disciplinary-hearing, petitioner was found guilty of all charges. The determination was affirmed on administrative review, prompting the commencement of this CPLR article 78 proceeding.
Initially, respondent concedes, and we agree, that substantial evidence does not support that part of the determination finding petitioner guilty of harassment, threats and a mess hall violation. The determination with respect to these charges must therefore be annulled but, as petitioner has served the penalty and there was no loss of good time, the matter need not be remitted for a redetermination of the penalty (see Matter of Franza v Venettozzi, 98 AD3d 782, 783 [2012]). Further, despite respondent’s claim that petitioner abandoned all challenges to the charges of violent conduct and committing an unhygienic act,
In that regard, petitioner maintains that the Hearing Officer improperly denied his right to call witnesses at the hearing. Petitioner sought to call an inmate who did not witness the incident but purportedly heard a remark from a correction officer that “we finally got him.” Contrary to petitioner’s claim, this alleged remark does not establish that the misbehavior report was unfounded. Rather, it merely suggests that correction officers had been trying to catch him violating prison rules and had finally succeeded. Accordingly, there was no error in denying the witness as irrelevant (see Matter of Dallio v Fischer, 68 AD3d 1380, 1380 [2009]; Matter of Washington v Napoli, 61 AD3d 1243, 1243 [2009], lv denied 13 NY3d 704 [2009]; compare Matter of H’Shaka v Fischer, 100 AD3d 1056, 1057 [2012]).
Peters, P.J., Rose, Stein and McCarthy, JJ., concur. Adjudged that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of harassment, threats and a mess hall violation; petition granted to that extent and respondent is directed to expunge all references thereto from petitioner’s institutional record; and, as so modified, confirmed.
Notably, inasmuch as petitioner does not pursue a substantial evidence challenge in his brief regarding the violent conduct and unhygienic act charges charges, we deem any claims in that regard as to those charges to be abandoned (see Matter of Lamage v Bezio, 74 AD3d 1676, 1676 [2010]).