Fernandez v. Annucci
| Decision Date | 17 May 2018 |
| Docket Number | 525529 |
| Parties | In the Matter of Oscar FERNANDEZ, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
161 A.D.3d 1431
77 N.Y.S.3d 721
In the Matter of Oscar FERNANDEZ, Petitioner,
v.
Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, et al., Respondents.
525529
Supreme Court, Appellate Division, Third Department, New York.
Calendar Date: April 3, 2018
Decided and Entered: May 17, 2018
Oscar Fernandez, Auburn, petitioner pro se.
Barbara D. Underwood, Acting Attorney General, Albany (Victor Paladino of counsel), for respondents.
Before: Garry, P.J., McCarthy, Aarons, Rumsey and Pritzker, JJ.
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 Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.
Upon investigating a disturbance in a stairwell leading out of the facility's mess hall, petitioner was observed running down that stairwell away from the location where correction officers soon thereafter discovered another inmate bleeding and lying on the ground with a handmade shank-type weapon on the ground next to him. After the inmate provided a description of his attacker that matched petitioner, petitioner was charged in a misbehavior report with assaulting another inmate, violent conduct, creating a disturbance and possessing a weapon. Following a tier III disciplinary rehearing,1 petitioner was found guilty as charged. That determination
was upheld upon administrative review. This CPLR article 78 proceeding ensued.
Initially, to the extent that petitioner's challenges relate to his July 2016 determination of guilt, that part of his petition is moot because the July 2016 determination was administratively reversed (see Matter of Boykin v. Prack, 137 A.D.3d 1393, 1394, 27 N.Y.S.3d 704 [2016] ). With regard to the October 2016 determination, the misbehavior report, hearing testimony and documentary evidence provide substantial evidence to support the finding of guilt (see Matter of Davis v....
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