Matter of Campos v Prack

Matter of Campos v Prack 2016 NY Slip Op 06525 Decided on October 6, 2016 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: October 6, 2016
521092

[*1]In the Matter of KENNY CAMPOS, Petitioner,

v

ALBERT PRACK, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

Calendar Date: September 15, 2016
Before: Peters, P.J., Egan Jr., Lynch, Rose and Aarons, JJ.

Kenny Campos, Pine City, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Kathy M. Arnold of counsel), for respondent.

Peters, P.J.

MEMORANDUM AND JUDGMENT

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 the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with violent conduct, creating a disturbance, assaulting staff, engaging in an unhygienic act and interfering with an employee. According to the misbehavior report, petitioner, while being escorted by two correction officers, suddenly turned and spit in a correction officer's face and punched him in the chest. Petitioner then disregarded orders to stop his aggressive behavior, resulting in

the correction officers' use of force to control petitioner and place him in mechanical restraints. Following a disciplinary hearing, petitioner was found guilty of all charges, and that determination was affirmed upon administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, documentary evidence and testimony from numerous witnesses, including those involved in the incident, provide substantial evidence to support the determination of guilt (see Matter of Blocker v Fischer, 107 AD3d 1285, 1286 [2013]; Matter of Martin v Fischer, 98 AD3d 774, 774 [2012]). Any alleged inconsistencies in [*2]the evidence and testimony presented a credibility issue for the Hearing Officer to resolve (see Matter of Lane v Annucci, 127 AD3d 1492, 1493 [2015]; Matter of Douglas v Fischer, 126 AD3d 1244, 1245 [2015], lv denied 26 NY2d 904 [2015), and, contrary to petitioner's contention, the fact that the Hearing Officer resolved credibility issues against him is not indicative of bias (see Matter of Canzater-Smith v Selsky, 28 AD3d 899, 900 [2006]).

Turning to petitioner's procedural claims, we are unpersuaded by his contention that the Hearing Officer was required to personally interview the four inmate witnesses who refused to testify. The record establishes that, in addition to the fact that none of those witnesses previously agreed to testify, three of the witnesses executed a witness refusal form indicating their reasons for not testifying and, particularly with regard to the inmate who did not execute a refusal form, the Hearing Officer made sufficient inquiry, on the record, of the correction officers who spoke with those witnesses regarding the refusal to testify (see Matter of Vansteenburg v State of N.Y. Dept. of Corrs. & Community Supervision, 128 AD3d 1295, 1296 [2015]). We have reviewed petitioner's remaining contentions, including his claims that he was improperly denied evidence and that the Hearing Officer was biased, and, to the extent that they are properly before us, find them to be without merit.

Egan Jr., Lynch, Rose and Aarons, JJ., concur.

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