Wilson v. Annucci

• Decision Date: 25 June 2015
• Citation: 2015 N.Y. Slip Op. 05551,10 N.Y.S.3d 908 (Mem),129 A.D.3d 1422
• Parties: In the Matter of Njera WILSON, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 1422

10 N.Y.S.3d 908 (Mem)

2015 N.Y. Slip Op. 05551

In the Matter of Njera WILSON, Petitioner

v.Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, et al., Respondents.

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

June 25, 2015.

Njera Wilson, Dannemora, petitioner pro se.

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

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 Commissioner of Corrections and Community Supervision which found petitioner guilty of violating a prison disciplinary rule.

During the course of a pat frisk, petitioner swung his elbow toward a correction officer and attempted to strike him. As a result, he was charged in a misbehavior report with attempting to assault staff, refusing a direct order and creating a disturbance. Following a tier III disciplinary hearing, petitioner was found guilty of attempting to assault staff, 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 misbehavior report, related documentation and hearing testimony provide substantial evidence supporting the determination of guilt (see Matter of Morrison v. Prack, 122 A.D.3d 996, 996, 994 N.Y.S.2d 484 [2014] ; Matter of Quezada v. Fischer, 113 A.D.3d 1004, 1004, 979 N.Y.S.2d 426 [2014] ). Although petitioner denied trying to strike the officer and stated that it was he who was assaulted, his testimony presented a credibility issue for the Hearing Officer to resolve (see Matter of Blocker v. Fischer, 107 A.D.3d 1285, 1286, 967 N.Y.S.2d 525 [2013] ; Matter of Moreno v. Fischer, 100 A.D.3d 1167, 1167–1168, 954 N.Y.S.2d 239 [2012] ). Moreover, we find no merit to petitioner's claim that he was improperly denied the unusual incident report, as such report did not exist (see Matter of Mendez v. Annucci, 126 A.D.3d 1216, 1217, 3 N.Y.S.3d 640 [2015] ; Matter of Martin v. Fischer, 109 A.D.3d 1026, 1027, 971 N.Y.S.2d 357 [2013] ). We have considered petitioner's remaining contentions and find that they are either unpreserved for our review or are unpersuasive.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

PETERS, P.J., GARRY, EGAN JR. and LYNCH, JJ., concur.