Sherman v. Annucci

• Decision Date: 15 September 2016
• Citation: 142 A.D.3d 1196,37 N.Y.S.3d 635,2016 N.Y. Slip Op. 06017
• Parties: In the Matter of Albert SHERMAN, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
• Court: New York Supreme Court — Appellate Division

142 A.D.3d 1196

37 N.Y.S.3d 635

2016 N.Y. Slip Op. 06017

In the Matter of Albert SHERMAN, Petitioner,

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

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

Sept. 15, 2016.

Albert Sherman, Dannemora, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondent.

Before: McCARTHY, J.P., EGAN JR., LYNCH, CLARK and AARONS, JJ.

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 was charged in a misbehavior report with assault on staff, violent conduct, creating a disturbance, refusing a direct order, violating facility movement regulations and violating facility frisk procedures. According to the report, when a correction officer ordered petitioner to pack his property for a transfer, he refused and became disruptive. The officer escorted him to a foyer where petitioner refused to allow the officer to frisk him, he grabbed the officer and they struggled until help arrived. An initial tier III hearing finding him guilty of all charges was reversed on administrative appeal. Following a rehearing, petitioner was again found guilty of all charges and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The testimony of the correction officer involved in the incident, together with the misbehavior report, unusual incident report and use of force report, provide substantial evidence supporting the determination (see Matter of Davis v. Annucci, 123 A.D.3d 1279, 1279, 996 N.Y.S.2d 404 [2014]

; Matter of

Reynoso v. Fischer, 73 A.D.3d 1315, 1315–1316, 899 N.Y.S.2d 913 [2010] ). Petitioner's differing version of events and his assertion that the officer's testimony was inconsistent created credibility issues for the Hearing Officer to resolve (see Matter of

Wilson v. Annucci, 129 A.D.3d 1422, 1422, 10 N.Y.S.3d 908 [2015] ; Matter of

Williams v. Goord, 36 A.D.3d 1033, 1033, 826 N.Y.S.2d 522 [2007] ). With respect to petitioner's request for a copy of the tape recording of the first hearing, the Hearing Officer inquired and found that such tape no longer existed (see Matter of

Malik v. Bezio, 76 A.D.3d 1128, 1128, 908 N.Y.S.2d 138 [2010] ), and petitioner was not deprived of a fair hearing by the absence of a copy of such tape (see Matter of

Madden v. Griffin, 109 A.D.3d 1060, 1061–1062, 971 N.Y.S.2d 586 [2013], lv. denied 22 N.Y.3d 860, 2014 WL 223746 [2014] ).

Petitioner was not improperly denied the right to call witnesses. He requested that two former employees of the Department of Corrections and Community Supervision be produced as witnesses. The Hearing Officer attempted to locate such individuals, including making calls that went unreturned to phone numbers that they had left with the Department when retiring. By the time of the hearing, they were civilians no longer under the Department's control and the Hearing Officer made reasonable and substantial efforts to contact them (see Matter of Davila v. Prack, 113 A.D.3d 978, 979, 979 N.Y.S.2d 195 [2014]

, lv. denied 23 N.Y.3d 904, 2014 WL 2579975 [2014] ; Matter of

Vizcaino v. Selsky, 26 A.D.3d 574, 575, 808 N.Y.S.2d 825 [2006], lv. denied 7 N.Y.3d 708, 821 N.Y.S.2d 813, 854 N.E.2d 1277 [2006] ). The inmate witnesses that petitioner requested refused to testify, and their reasons were set forth on the record (see Matter of

Williams v. Goord, 36 A.D.3d at 1033, 826 N.Y.S.2d 522 ; Matter of

Hill v. Selsky, 19 A.D.3d 64, 66–67, 795 N.Y.S.2d 794 [2005]

; Matter of

Moore v. Senkowski, 13 A.D.3d 683, 684, 785 N.Y.S.2d 605 [2004] ).

Contrary to petitioner's assertion, the record reveals that the hearing was “conducted in a fair and impartial manner, and there is nothing to suggest that the Hearing Officer was biased or that the...