Cruz v. Annucci

• Decision Date: 27 April 2017
• Docket Number: 523539.
• Parties: In the Matter of Elias CRUZ, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
• Court: New York Supreme Court — Appellate Division

149 A.D.3d 1446
50 N.Y.S.3d 894 (Mem)

In the Matter of Elias CRUZ, Petitioner,
v.
Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.

523539.

Supreme Court, Appellate Division, Third Department, New York.

April 27, 2017.

Elias Cruz, Ossining, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.

During a search of petitioner's cell, a correction officer found two state-issued sheets and a pillow case that had been ripped as well as a state-issued T-shirt with a missing hem. Petitioner refused the officer's request to make voluntary restitution for the items damaged and purportedly used profane language toward the officer. He was charged in a misbehavior report with possessing an altered item, damaging state property and verbally harassing an employee. Following a tier III disciplinary hearing, petitioner was found guilty of the first two charges but not of the third charge. The determination was later affirmed on administrative appeal with a modified penalty, and this CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, related documentation and physical evidence examined by the Hearing Officer at the hearing provide substantial evidence supporting the determination of guilt (see generally Matter of Gaston v. Annucci, 147 A.D.3d 1131, 1132, 45 N.Y.S.3d 716 [2017] ; Matter of Bermudez v. Fischer, 107 A.D.3d 1269, 1270, 967 N.Y.S.2d 249 [2013] ). Although petitioner maintained that the items were planted in his cell in retaliation for a complaint that he had filed against the author of the misbehavior report, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Giano v. Prack, 138 A.D.3d 1285, 1285–1286, 31 N.Y.S.3d 233 [2016], lv. denied 27 N.Y.3d 912, 2016 WL 4533480 [2016] ; Matter of Wilson v. Goord, 47 A.D.3d 1102, 1103, 850 N.Y.S.2d 272 [2008] ). Moreover, petitioner was not...