| Matter of Haynes v Bezio |
| 2010 NY Slip Op 04073 [73 AD3d 1295] |
| May 13, 2010 |
| Appellate Division, Third Department |
| In the Matter of Titus Haynes, Petitioner, v Norman Bezio,as Director of Special Housing and Inmate Disciplinary Programs,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 Albany County) to review a determination of the Commissioner of CorrectionalServices which found petitioner guilty of violating certain prison disciplinary rules.
When a correction officer spoke to petitioner about the messy condition of his cell, hebecame agitated and began arguing with her in a loud manner. He then refused the officer'sdirective to be quiet, used profanity and made an inappropriate comment. As a result, he wascharged in a misbehavior report with refusing a direct order, interfering with an employee,creating a disturbance, making threats and harassment. Shortly after this incident, anothercorrection officer recovered from petitioner's locker a weapon resembling an ice pick that waswrapped in toilet paper and part of a towel, and secreted inside the sleeve of his winter jacket. Asecond misbehavior report was, in turn, issued charging petitioner with possessing a weapon.Thereafter, a tier III disciplinary hearing was conducted with respect to the charges contained inboth reports. At the conclusion of the hearing, petitioner was found guilty of all of the charges.The determination was subsequently modified on administrative appeal and the charges ofcreating a disturbance and making threats were dismissed. However, the determination of guiltwas upheld with respect to the remaining charges. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior reports, together with the testimony of the correction [*2]officers who authored them as well as the documentary evidenceadduced at the hearing, provide substantial evidence supporting the determination of guilt (see Matter of Cruz v Goord, 41 AD3d1122, 1122-1123 [2007]; Matter ofVines v Goord, 19 AD3d 951, 952 [2005]). Petitioner's denial of any wrongdoingpresented a credibility issue for the Hearing Officer to decide (see Matter of Frazier v Prack, 62AD3d 1185, 1186 [2009]; Matterof Britt v Fischer, 54 AD3d 1087 [2008]). Moreover, any claimed deficiencies in theadequacy of petitioner's employee assistant were remedied by the Hearing Officer, and petitionerhas not demonstrated that he was prejudiced in his defense by such deficiencies (see Matter of Rivera v Goord, 38AD3d 964, 964 [2007]; Matter ofMartino v Goord, 38 AD3d 958, 959 [2007]). In addition, we find no merit topetitioner's claim that he was improperly denied witnesses, as the inmates who could beidentified as potential witnesses executed refusal forms indicating that they had no knowledge ofthe incidents in question (see Matter ofReynoso v Fischer, 67 AD3d 1166 [2009], appeal dismissed 14 NY3d 767[2010]; Matter of Martinez vSelsky, 53 AD3d 989 [2008]). Petitioner's remaining contentions, including his claimthat the Hearing Officer was biased, have been examined and found to be unpersuasive.
Cardona, P.J., Peters, Rose, Malone Jr. and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.