Anselmo v. Annucci

• Decision Date: 03 October 2019
• Docket Number: 527755
• Citation: 109 N.Y.S.3d 512,176 A.D.3d 1283
• Parties: In the Matter of Alex ANSELMO, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
• Court: New York Supreme Court — Appellate Division

176 A.D.3d 1283

109 N.Y.S.3d 512

In the Matter of Alex ANSELMO, Petitioner,

v.Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.

527755

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

Calendar Date: August 30, 2019

Decided and Entered: October 3, 2019

MEMORANDUM AND JUDGMENT

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.

Petitioner, a prison inmate, was charged in a misbehavior report with refusing a direct order, being out of place, violating facility movement procedures, creating a disturbance and interfering with an employee's duties. The charges stemmed from an incident in which petitioner attempted to go to the library, refused orders to return to his assigned program and became agitated. Petitioner struck an escort in the wake of that incident, resulting in a second misbehavior report charging him with assaulting a staff member and engaging in violent conduct. Following a combined tier III disciplinary hearing on the misbehavior reports, the Hearing Officer found petitioner guilty of refusing a direct order, being out of place, violating a facility movement regulation, engaging in violent conduct and assaulting a staff member. The determination was affirmed on administrative appeal, and this CPLR article 78 proceeding ensued.¹

We confirm. Initially, "the hearing was commenced in a timely manner and was completed in accordance with proper extension requests" ( Matter of Gonzalez v. Annucci , 168 A.D.3d 1291, 1292, 92 N.Y.S.3d 464 [2019] ; see Matter of Lopez v. Annucci , 171 A.D.3d 1326, 1327, 97 N.Y.S.3d 803 [2019] ; Matter of Encarnacion v. Annucci , 150 A.D.3d 1581, 1582, 55 N.Y.S.3d 516 [2017], lv denied 30 N.Y.3d 903, 2017 WL 4697399 [2017] ). "In any event, compliance with the regulatory time limits contained in 7 NYCRR 251–5.1 is directory only and there is no indication of any substantive prejudice to petitioner resulting from the delay" ( Matter of Caldwell v. Venettozzi , 166 A.D.3d 1184, 1185, 89 N.Y.S.3d 729 [2018] [internal quotation marks and citations omitted]; see Matter of Moise v. Annucci , 168 A.D.3d 1337, 1338, 92 N.Y.S.3d 736 [2019] ).

Next, petitioner contends that he was improperly denied documentary evidence in the form of certain videotapes. The bulk of the requested video footage could not be produced because it did not exist (see Matter of Reyes v. Keyser , 150 A.D.3d 1502, 1505, 55 N.Y.S.3d 495 [2017] ; Matter of Benitez v. Annucci , 139 A.D.3d 1215, 1216, 29 N.Y.S.3d 831 [2016] ). Petitioner also requested video footage of his movements after the incidents that did exist, although the Hearing Officer was advised in error that it did not exist or was otherwise inaccessible. Respondent subsequently provided the video with his answer to the petition, however, and we are satisfied after a viewing that it contains nothing of relevance to the disciplinary charges. As a result, the failure to produce the video footage for the hearing caused no prejudice to petitioner that would require annulment (compare Matter of Maldonado v. Coughlin , 186 A.D.2d 974, 975, 589 N.Y.S.2d 124 [1992], with Matter of Reyes v. Annucci , 150 A.D.3d 1373, 1374, 54 N.Y.S.3d 209 [2017], lv denied 29 N.Y.3d 918, 2017 WL 4015737 [2017] ).

Petitioner was not improperly denied witnesses whose testimony would have been irrelevant and/or redundant (see Matter of Mitchell v. Rodriguez , 175 A.D.3d 787, 107 N.Y.S.3d 485, 2019 N.Y. Slip Op. 06046, *2 [2019] ; Matter of Goodwin v. Annucci , 167 A.D.3d 1196, 1197, 89 N.Y.S.3d 473 [2018], lv denied 33 N.Y.3d 904, 2019 WL 2041829 [2019] ). Finally, the record does not substantiate petitioner's allegations that the Hearing Officer was biased against him or engaged in improper conduct, and the determination itself was founded upon the hearing evidence (see Matter of Fann v. Annucci , 140 A.D.3d 1517, 1518, 35 N.Y.S.3d 516 [2016] ; Matter of Chappelle v. Coombe , 234 A.D.2d 779, 779–780, 652 N.Y.S.2d 107 [1996] ). Petitioner's remaining contentions have been examined and found to be without merit.

Mulvey, Devine and Rumsey, JJ., concur.

Garry, P.J. (concurring in part and dissenting in part).

We concur that the determination should be confirmed as to the charges set forth in the first misbehavior report. We dissent as to the second misbehavior report, which charged petitioner with assaulting a staff member and engaging in violent conduct. The incident underlying the charges in the second report occurred in the main prison block, after petitioner was escorted away from the area where the charges underlying the first report arose. Petitioner requested video recordings from this area, as well as footage from the body cameras of correction officers present during the altercation. He advised the Hearing Officer that the "cameras are gonna show that there was no violence. That there was no aggression on my part. And, that it would show that the officers think is versus what (inaudible) is on the paperwork that you and I have been provided is inaccurate." Petitioner further claimed that the body camera footage would show a "responding [s]ergeant, or white shirt that responded when the alarm was called. And, he covered his camera and I, we (inaudible) when they kneed me. When they hit me. It's right on the camera ... [s]ome white shirt. I don't know what's his name. But, he had a recording body camera because the, the light on it was blinking. When the alarm was activated." None of the requested video recordings were produced at the hearing.¹

The misbehavior report states that the alleged assault and violent conduct occurred in the part of the prison known as A block. The correction officer who had been escorting petitioner back toward his cell for keeplock reported that, upon arriving there, "[he] took the mechanical restraints off," and petitioner then "swung his left elbow and hit [the officer] in the left side of [his] head." The officer further reported that he then got petitioner into a body hold as they hit the ground, and that petitioner continued struggling violently until another officer arrived and administered pepper spray. The record includes the required documentation for incidents involving the use of force, with dates and time stamps indicating that it was completed immediately after the incident.

Petitioner made two requests for video recordings prior to the hearing. The first, in pertinent part, requested video recordings from the "A block camera/facing industry." This request was denied as "there is no video recording in this area." The second request was more detailed and, in addition to referencing the A block location, specified the "tower camera of pathway between tailorshop and A block entrance," and the "body cameras of all sgts involved," in addition to several further requests. These requests were denied on the stated grounds that there was "no camera in this area," and "no [body camera] video." During the hearing, petitioner asserted that there were, in fact, video cameras in the area, describing for the Hearing Officer both the body camera footage that he had expected to be available and the location of various cameras that he believed would reveal evidence in his favor.

In a prison disciplinary proceeding, the Hearing Officer is tasked with assessing the credibility of the inmate, prison staff and witnesses, and with the resolution of conflicting evidence (see e.g. Matter of Foster v. Coughlin , 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 [1990] ; Matter of Rogers v. Annucci , 167 A.D.3d 1137, 1138, 87 N.Y.S.3d 515 [2018] ; Matter of Adams v. Fischer , 116 A.D.3d 1269, 1270, 983 N.Y.S.2d 746 [2014] ; Matter of Cunningham v. Coughlin , 97 A.D.2d 930, 931, 470 N.Y.S.2d 725 [1983] ). It is well established that a Hearing Officer has a duty to inquire and...