State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: September 15, 2016 522497 

________________________________

In the Matter of NORMAN

McBRIDE,

Petitioner,

v

MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting 

Commissioner of Corrections

and Community Supervision,

Respondent.

________________________________

Calendar Date: August 8, 2016

Before: Garry, J.P., Lynch, Rose, Clark and Mulvey, JJ.

__________

Norman McBride, Dannemora, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J.

Mastracco of counsel), for respondent.

__________

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

engaging in violent conduct, creating a disturbance, failing to

comply with frisk procedures and refusing a direct order. 

According to the report, after having observed petitioner slip a

small, white paper object into his left boot, a correction

officer directed petitioner to the wall for a pat frisk. 

Although initially compliant, petitioner refused to remove his

left boot and stepped away from the wall. After petitioner
-2- 522497 

refused further orders to comply, correction officers ultimately

took him to the ground and restraints were applied. Following a

tier III disciplinary hearing, petitioner was found guilty as

charged. The determination was affirmed on administrative appeal

and this CPLR article 78 proceeding ensued.

Initially, respondent concedes, and we agree, that

substantial evidence does not support the finding that petitioner

was guilty of the charge of engaging in violent conduct. 

Accordingly, we annul that part of the determination. Given that

no loss of good time was imposed and petitioner has already

served the penalty, the matter need not be remitted for a

reassessment of the penalty (see Matter of Young v Keyser, 136

AD3d 1084, 1084-1085 [2016]; Matter of Chisholm v Annucci, 135

AD3d 1279, 1279 [2016]). 

As to the remaining charges, the misbehavior report and

hearing testimony provide substantial evidence to support the

determination of guilt (see Matter of Rizzuto v Eastman, 134 AD3d

1308, 1308 [2015]; Matter of Nieves v Annucci, 123 AD3d 1368,

1368 [2014]). Although petitioner testified that a medical

condition prevented him from complying with the frisk procedures

and the order to remove his boot, and that medical condition was

confirmed by the facility nurse, the nurse also testified that

there were no documented functional limitations attributed to the

condition in petitioner's medical file. This conflicting

evidence presented a credibility issue for the Hearing Officer to

resolve (see Matter of Rogers v Fischer, 96 AD3d 1318, 1318

[2012]; Matter of Capocetta v Fischer, 72 AD3d 1377, 1378 [2010],

lv denied 15 NY3d 706 [2010]). Finally, there is nothing in the

record to indicate that petitioner was denied a fair hearing or

that the determination of guilt was the result of any alleged

bias on the part of the Hearing Officer or a predetermination of

guilt prior to the hearing (see Matter of Fowler v Fischer, 106

AD3d 1344, 1345 [2013], lv denied 21 NY3d 865 [2013]; Matter of

Barnes v Bezio, 86 AD3d 884, 885 [2011]). 

Garry, J.P., Lynch, Rose, Clark and Mulvey, JJ., concur.
-3- 522497 

ADJUDGED that the determination is modified, without costs,

by annulling so much thereof as found petitioner guilty of

engaging in violent conduct; petition granted to that extent and

respondent is directed to expunge all references to this charge

from petitioner's institutional record; and, as so modified,

confirmed. 

ENTER:

Robert D. Mayberger

Clerk of the Court