Osborne v. Venettozzi
| Decision Date | 21 July 2016 |
| Citation | 141 A.D.3d 990,2016 N.Y. Slip Op. 05607,34 N.Y.S.3d 916 (Mem) |
| Parties | In the Matter of Paul OSBORNE, Petitioner, v. Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Paul Osborne, Malone, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.
Proceeding pursuant to CPLR article 78 () to review a determination of the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.
While he was making his rounds, a correction officer heard petitioner in his cell yelling, using profane language and making threatening comments about law enforcement officials. When the officer told petitioner to stop yelling, he responded with more profane language and threatening statements. As a result of this incident, petitioner was charged in a misbehavior report with harassment, interference, making threats, engaging in violent conduct, creating a disturbance and refusing a direct order. Following a tier III disciplinary hearing, he was found guilty of harassment, making threats and engaging in violent conduct, but not guilty of the other charges. The determination was later affirmed on administrative appeal and this CPLR article 78 proceeding ensued.
We confirm. The detailed misbehavior report, together with the testimony of its author, provide substantial evidence supporting the determination of guilt (see Matter of Perkins v. Annucci, 129 A.D.3d 1421, 1421, 10 N.Y.S.3d 908 [2015]
Deleon v. Prack, 111 A.D.3d 1204, 1205, 975 N.Y.S.2d 701 [2013] ). The contrary testimony of petitioner and his inmate witnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of
Simmons v. LaValley, 130 A.D.3d 1126, 1127, 12 N.Y.S.3d 390 [2015] ; Matter of
Espinal v. Fischer, 114 A.D.3d 978, 979, 979 N.Y.S.2d 864 [2014] ). In addition, petitioner was not improperly denied the right to have two witnesses, whose testimony would have been redundant, testify at the hearing (see Matter of
White v. Fischer, 121 A.D.3d 1478, 1479, 994 N.Y.S.2d 467 [2014] ; Matter of
Elias v. Fischer, 118 A.D.3d 1193, 1194, 987 N.Y.S.2d 517 [2014] ). Furthermore, upon reviewing the record, we find no indication that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of
Ramos v. Prack, 125 A.D.3d 1036, 1037, 1 N.Y.S.3d 586 [2015], lv. dismissed 25 N.Y.3d 1039, 10 N.Y.S.3d 521, 32 N.E.3d...
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Woodward v. Annucci
...v. New York State Dept. of Corr. & Community Supervision, 168 A.D.3d 1327, 1328, 92 N.Y.S.3d 745 [2019] ; Matter of Osborne v. Venettozzi, 141 A.D.3d 990, 991, 34 N.Y.S.3d 916 [2016] ; Matter of Encarnacion v. Goord, 19 A.D.3d 906, 906, 797 N.Y.S.2d 178 [2005] ). Contrary to petitioner's co......
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Watson v. Gardner
...given the testimony of the Rastafarian state chaplain and the facility Rastafarian facilitator (see Matter of Osborne v. Venettozzi, 141 A.D.3d 990, 991, 34 N.Y.S.3d 916 [2016] ; Matter of Cobb v. Yelich, 118 A.D.3d 1235, 1236, 988 N.Y.S.2d 297 [2014] ). Further, there is nothing in the rec......
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Dawes v. Annucci
...the determination of guilt (see Matter of Young v. Prack , 142 A.D.3d 1226, 1227, 38 N.Y.S.3d 630 [2016] ; Matter of Osborne v. Venettozzi , 141 A.D.3d 990, 991, 34 N.Y.S.3d 916 [2016] ). Although petitioner maintained that the misbehavior report was written in retaliation for his prior gri......
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Haigler v. Lilley, 529594
...unavailable to testify (see Matter of Harris v. Annucci, 145 A.D.3d 1293, 1294, 44 N.Y.S.3d 240 [2016] ; Matter of Osborne v. Venettozzi, 141 A.D.3d 990, 991, 34 N.Y.S.3d 916 [2016] ). Finally, contrary to petitioner's claim that the Hearing Officer was biased, the record reflects that the ......