| Matter of Williams v Fischer |
| 2010 NY Slip Op 00620 [69 AD3d 1278] |
| January 28, 2010 |
| Appellate Division, Third Department |
| In the Matter of Thomas Williams, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Clinton County) to review a determination of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with making threats, refusing to obey a directorder, talking in a corridor (creating a disturbance) and harassing an employee. Following a tierIII disciplinary hearing, petitioner was acquitted of making threats, but found guilty of theremaining charges. That determination was affirmed on administrative appeal and this CPLRarticle 78 proceeding ensued.
Substantial evidence, including the misbehavior report and the hearing testimony of itsauthor, supports the determination of guilt for the charges of harassment and refusing a directorder (see Matter of Sanders vGoord, 47 AD3d 987, 988 [2008]). However, we do not find the existence of substantialevidence to support the part of the determination which found petitioner guilty of creating adisturbance, as there was no evidence that petitioner was talking loudly or otherwise "engage[d]in conduct which disturb[ed] the order of any part of the facility" (7 NYCRR 270.2 [B] [5] [iv];see generally Matter of Hodge vSelsky, 53 AD3d 953, 954 [2008]). [*2]Accordingly, thedetermination must be annulled to that extent and all references thereto expunged frompetitioner's institutional record. "Inasmuch as no loss of good time was imposed and petitionerhas already served the penalty, the matter need not be remitted for a redetermination of thepenalty" (Matter of Hodge v Selsky, 53 AD3d at 954 [citation omitted]).
Petitioner's claim that the misbehavior report was written in retaliation for past grievances hehad filed presented a credibility issue for the Hearing Officer to resolve (see Matter of Pertillar v Fischer, 64AD3d 1029, 1030 [2009]). We are unpersuaded that petitioner was denied the right to callcertain witnesses, as the record reflects that the requested witnesses had no direct knowledge ofthe incident in question and their testimony, as it pertained to petitioner's retaliation defense,would have been redundant in light of the documentary evidence presented by petitioner (see Matter of Brown v Taylor, 62AD3d 1230, 1231 [2009]; Matterof Rizzuto v Goord, 36 AD3d 1124, 1125 [2007]). Finally, we find no support in therecord for petitioner's claim that the Hearing Officer was biased and there is no indication thatthe determination flowed from any bias (see Matter of Davis v Fischer, 64 AD3d 847, 848 [2009], lvdenied 13 NY3d 709 [2009]).
Cardona, P.J., Spain, Malone Jr., Stein and McCarthy, JJ., concur. Adjudged that thedetermination is modified, without costs, by annulling so much thereof as found petitioner guiltyof creating a disturbance; petition granted to that extent and respondent is directed to expunge allreferences thereto from petitioner's institutional record; and, as so modified, affirmed.