| Matter of Watson v New York State Dept. of CorrectionalServs. |
| 2011 NY Slip Op 01914 [82 AD3d 1435] |
| March 17, 2011 |
| Appellate Division, Third Department |
| In the Matter of Miciaihus Watson, Petitioner, v New York StateDepartment of Correctional Services, Respondent. |
—[*1] Eric T. Schneiderman, 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 Albany County) to review a determination of the Commissioner of CorrectionalServices which found petitioner guilty of violating certain prison disciplinary rules.
After petitioner, a prison inmate, was identified as one of a group who engaged in aconfrontation with correction officers, he was served with a misbehavior report charging himwith multiple disciplinary infractions. Following a tier III disciplinary hearing, he was foundguilty of demonstration, interference and creating a disturbance, but was found not guilty ofviolent conduct, threats and harassment. That determination was affirmed on administrativeappeal and petitioner, thereafter, commenced this CPLR article 78 proceeding.
Initially, we find that the misbehavior report, the hearing testimony of a correction officerpresent at the incident and petitioner's own testimony that he was present at the scene when theresponse team arrived provide substantial evidence to support the determination of guilt withregard to the charges of demonstration and creating a disturbance (see Matter of Ortiz v Fischer, 75 AD3d1042, 1042 [2010]; Matter ofOwens v Fischer, 75 AD3d 1020, 1021 [2010]). Petitioner's testimony, and that of hisinmate witnesses, that he did not participate in the altercation presented a credibility question forthe Hearing Officer to resolve (seeMatter of Perez [*2]v Bezio, 76 AD3d 1134 [2010]; Matter of Truman v Fischer, 75 AD3d1019, 1020 [2010]). In addition, contrary to petitioner's contention, we find that themisbehavior report was sufficient to put him on notice of the charges against him and allow himto prepare a defense (see Matter of Pantev Goord, 73 AD3d 1394, 1395 [2010]; Matter of Edwards v Leclaire, 71 AD3d 1199, 1200 [2010]).Finally, with regard to these charges, we find that, despite frequent gaps in the hearing transcript,it was not so deficient as to preclude meaningful review (see Matter of Reese v Bezio, 75 AD3d 1029, 1030 [2010]).
However, we reach a different conclusion with regard to the charge of interference. TheHearing Officer's sole basis for finding petitioner guilty of this charge was the testimony of afellow inmate who alleged that petitioner advised him not to cooperate with investigatingofficers. However, meaningful review is precluded because the hearing transcript of this inmate'stestimony is incomplete and contains no statements to support the Hearing Officer's conclusion.As such, we must annul that part of the determination and remit the matter for a new hearing onthat charge (see Matter of White vFischer, 73 AD3d 1372, 1373 [2010]; Matter of La Van v New York State Dept. of Correctional Servs., 47AD3d 1153 [2008]).
Petitioner's remaining contentions have been reviewed and we find them lacking in merit.
Peters, J.P., Lahtinen, Malone Jr., Stein and Egan Jr., JJ., concur. Adjudged that thedetermination is modified, without costs, by annulling so much thereof as found petitioner guiltyof interference; matter remitted to the Commissioner of Correctional Services for furtherproceedings on that charge; and, as so modified, confirmed.