Matter of Terrence v Annucci

Matter of Terrence v Annucci 2015 NY Slip Op 09345 Decided on December 17, 2015 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: December 17, 2015
520883

[*1]In the Matter of GILL TERRENCE, Petitioner,

v

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

Calendar Date: October 27, 2015
Before: Peters, P.J., McCarthy, Egan Jr. and Clark, JJ.

Gill Terrence, Alden, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

MEMORANDUM AND JUDGMENT

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of respondent finding petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with lewd conduct after he watched a correction officer from the shower, stepped out of the shower and exposed himself, then returned to the shower leaving the curtain open and began masturbating. Petitioner was found guilty following a tier III disciplinary hearing. That determination was affirmed on administrative appeal and this CPLR article 78 proceeding ensued.

Contrary to petitioner's contention, the misbehavior report and testimony from the correction officer who observed

petitioner's behavior provide substantial evidence to support the determination of guilt (see Matter of Fero v Prack, 110 AD3d 1128, 1128 [2013]; Matter of Collins v Fischer, 109 AD3d 1040, 1040 [2013], lv dismissed 23 NY3 954 [2014]). To the extent that petitioner claims that the charge was fabricated, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Coleman v Fischer, 87 AD3d 778, 779 [2011]). Petitioner's procedural challenges, including his claim that the Hearing Officer was biased, have been reviewed and found to be either unpreserved or without merit.

Peters, P.J., McCarthy, Egan Jr. and Clark, JJ., concur.

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