Simmons v. LaValley, 520034

• Decision Date: 02 July 2015
• Docket Number: 520034
• Citation: 2015 N.Y. Slip Op. 05742,130 A.D.3d 1126,12 N.Y.S.3d 390
• Parties: In the Matter of Derek SIMMONS, Petitioner, v. Thomas LaVALLEY, as Superintendent of Clinton Correctional Facility, Respondent.
• Court: New York Supreme Court — Appellate Division

130 A.D.3d 1126

12 N.Y.S.3d 390

2015 N.Y. Slip Op. 05742

In the Matter of Derek SIMMONS, Petitioner

v.Thomas LaVALLEY, as Superintendent of Clinton Correctional Facility, Respondent.

520034

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

July 2, 2015.

Derek Simmons, Dannemora, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

Before: LAHTINEN, J.P., ROSE, LYNCH and CLARK, JJ.

Opinion

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

Petitioner was charged in a misbehavior report with creating a disturbance, interfering with an employee, harassment, refusing a direct order and making threats. According to the misbehavior report, petitioner did not comply with several directives from a correction officer to hang up the telephone, requiring that officer to approach petitioner. Thereafter, petitioner allegedly made various inappropriate and violent remarks to the correction officer. Following a tier II disciplinary hearing, petitioner was found guilty of all charges and that determination was affirmed upon administrative appeal. This CPLR article 78 proceeding ensued.

Initially, we agree with petitioner that the charge of creating a disturbance was not supported by the misbehavior report. Inasmuch as the penalty has already been served and it does not appear that any loss of good time was imposed, there is no need to remit the matter for a redetermination of the penalty imposed (see Matter of Hood v. Fischer, 100 A.D.3d 1122, 1123, 953 N.Y.S.2d 390 [2012] ). We reach a different conclusion with regard to the remaining charges. The detailed misbehavior report, authored by the correction officer who was involved in the incident, is sufficient, by itself, to provide substantial evidence to support the determination of guilt with respect to those charges (see Matter of Green v. Bradt, 91 A.D.3d 1235, 1237, 937 N.Y.S.2d 456 [2012], lv. denied 19 N.Y.3d 802, 2012 WL 1538331 [2012] ; Matter of Encarnacion v. Bellnier, 89 A.D.3d 1301, 1302, 934 N.Y.S.2d 511 [2011] ). Any conflicting testimony from petitioner or his witnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of Grant v. Rock, 122 A.D.3d 1225, 1226, 997 N.Y.S.2d 541 [2014] ).

To the extent that petitioner asserts that he...