| Matter of Washington v Napoli |
| 2009 NY Slip Op 03078 [61 AD3d 1243] |
| April 23, 2009 |
| Appellate Division, Third Department |
| In the Matter of Anthony Washington, Petitioner, v DavidNapoli, as Superintendent of Southport Correctional Facility,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Chemung County) to review a determination of respondent which foundpetitioner guilty of violating a prison disciplinary rule.
Petitioner was charged in a misbehavior report with violating the prison disciplinary rule thatprohibits making threats. A tier II disciplinary hearing ensued, at the conclusion of which theHearing Officer found petitioner guilty and imposed a penalty. Following an unsuccessfuladministrative appeal, petitioner commenced this CPLR article 78 proceeding to annul thedetermination of guilt.
We confirm. The misbehavior report and the testimony of the authoring correction officerconstitute substantial evidence of petitioner's guilt (see Matter of Frazier v Artus, 40 AD3d 1288 [2007]). Although"evidence of past grievances petitioner had filed against the same correction officer whoauthored the misbehavior report" plainly was relevant to petitioner's retaliation defense(Matter of Perkins v Goord, 257 AD2d 821, 822 [1999]), the Hearing Officer stipulatedthat petitioner previously had filed a grievance against the authoring correction officer. TheHearing Officer's refusal to produce a copy of the actual grievance, which petitioner [*2]admittedly possessed, or to permit testimony as to the substance ofthe underlying grievance does not warrant reversal (see Matter of Edwards v Goord, 11 AD3d 832, 833 [2004]).Petitioner's claim of retaliation presented a credibility determination for the Hearing Officer toresolve (see Matter of Davis vGoord, 34 AD3d 1027 [2006]), and petitioner's requested witnesses properly weredenied in light of the fact that they had no firsthand knowledge of the underlying incident(see Matter of Smith v Portuondo, 309 AD2d 1028, 1029 [2003]). Finally, a review ofthe hearing transcript fails to support petitioner's claim of bias (see Matter of Harvey v Woods, 56AD3d 829, 830 [2008]).
Cardona, P.J., Mercure, Rose, Lahtinen and Kavanagh, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.