State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: February 2, 2017 523035 

________________________________

In the Matter of RAYMOND

GASTON,

Petitioner,

v

MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting

Commissioner of Corrections

and Community Supervision,

et al.,

Respondents.

________________________________

Calendar Date: November 29, 2016

Before: Peters, P.J., McCarthy, Lynch, Clark and Mulvey, JJ.

__________

Raymond Gaston, Wallkill, petitioner pro se.

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

Mastracco of counsel), for respondents. 

__________

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 Superintendent of Shawangunk

Correctional Facility finding petitioner guilty of violating a

prison disciplinary rule.

Petitioner was charged in a misbehavior report with

possessing an altered item and damaging state property. 

According to the misbehavior report, petitioner used rubber pads

that appeared to be cut from the interior of an athletic ball

while exercising in the recreation yard of the correctional

facility. Following a tier II disciplinary hearing, petitioner

was only found guilty of possessing an altered item. That
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determination was affirmed upon administrative appeal. 

Petitioner then commenced this CPLR article 78 proceeding.

We confirm. To the extent challenged by petitioner, the

misbehavior report, related documentation and testimony at the

hearing provide substantial evidence to support the determination

of guilt (see Matter of Garcia v Garner, 122 AD3d 988, 989

[2014]; Matter of Mitchell v Fischer, 81 AD3d 1013, 1014 [2011]). 

We are unpersuaded by petitioner's contention that he was denied

the right to call two inmate witnesses. Each of these inmates

signed witness refusal forms, one indicating that he was not

present and the other that he did not know anything about the

event. Both inmates, however, added that they did not want to

testify over concerns of retaliation by the correction officer

who wrote the misbehavior report. After petitioner emphasized

each inmate's retaliation concern, the Hearing Officer

interviewed both witnesses and confirmed their statements. While

the Hearing Officer failed to inquire further as to the reason

for the retaliation concern, since neither inmate raised any

contention of actual coercion, we conclude that petitioner's

right to "call witnesses on his behalf" was not violated (7 NYCRR

254.5 [a]; see Wolff v McDonnell, 418 US 539, 566 [1974]; Matter

of Cortorreal v Annucci, 28 NY3d 54, 59-60 [2016]; Matter of

Taylor v Annucci, 140 AD3d 1433, 1434 [2016]; Matter of Rodriguez

v Annucci, 136 AD3d 1083, 1084 [2016]). Contrary to petitioner's

contention, the record establishes that his retaliation defense

was considered by the Hearing Officer. The fact that the Hearing

Officer resolved such credibility issue adversely to petitioner

is not indicative of bias (see Matter of Amaker v Bezio, 98 AD3d

1146, 1146 [2012]). We have reviewed petitioner's remaining

contentions and find them to be without merit. 

Peters, P.J., McCarthy, Lynch, Clark and Mulvey, JJ.,

concur.
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ADJUDGED that the determination is confirmed, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court