State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 15, 2016 522837 

________________________________

In the Matter of MARCUS 

TELESFORD, 

Petitioner,

v MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting 

Commissioner of Corrections

and Community Supervision, 

Respondent.

________________________________

Calendar Date: October 25, 2016

Before: Peters, P.J., McCarthy, Garry, Egan Jr. and Rose, JJ.

__________

Marcus Telesford, Malone, 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. 

After a pat frisk of petitioner revealed a concealed

object, he grabbed the correction officer's right hand in an

attempt to thwart that officer's attempt to recover the object,

and use of force was required to subdue petitioner and recover

the object. As a result of the incident, petitioner was charged

in a misbehavior report with engaging in violent conduct,

assaulting staff and interfering with staff. Following a tier

III disciplinary hearing, petitioner was found guilty of the

charges, and that determination was upheld on administrative
-2- 522837 

appeal. Petitioner then commenced this CPLR article 78

proceeding. 

We confirm. The misbehavior report, testimony at the

hearing, including the testimony of the correction officer who

authored the misbehavior report, and documentary evidence provide

substantial evidence to support the determination of guilt (see

Matter of Boyd v Prack, 136 AD3d 1136, 1136 [2016]; Matter of

Douglas v Fischer, 126 AD3d 1244, 1245 [2015], lv denied 26 NY3d

904 [2015]). To the extent that petitioner denied, among other

things, having attempted to assault the correction officer who

conducted the pat frisk and contended that the misbehavior report

was authored in retaliation for previous grievances that he had

filed, these claims raised credibility issues for the Hearing

Officer to resolve (see Matter of Garrow v Annucci, 141 AD3d

1046, 1047 [2016]; Matter of Tuitt v Martuscello, 106 AD3d 1355,

1356 [2013], lv denied 21 NY3d 865 [2013]).

Turning to petitioner's procedural contentions, our review

of the record establishes that petitioner received adequate

employee assistance. Petitioner was provided with those

documents that were relevant and available, and any deficiencies

in assistance were remedied by the Hearing Officer who read into

the record the unusual incident report, use of force report and

related documentation (see Matter of Hernandez v Fischer, 111

AD3d 1042, 1043 [2014]; Matter of Phelps v Fischer, 108 AD3d

1003, 1004 [2013], appeal dismissed 22 NY3d 1046 [2014]). 

Moreover, petitioner was provided with an opportunity to review

photographs taken after the incident and a use-of-force video. 

Contrary to petitioner's claim, he was not denied any relevant

witnesses as the requested witnesses were either not present

during the incident or would have provided testimony that was

redundant or immaterial (see Matter of Sanders v Annucci, 128

AD3d 1156, 1157 [2015], appeal dismissed 26 NY3d 964 [2015];

Matter of H'Shaka v Fischer, 121 AD3d 1455, 1456 [2014], lv

denied 24 NY3d 913 [2015]). Petitioner's remaining contentions

have been considered and are unavailing.

Peters, P.J., McCarthy, Garry, Egan Jr. and Rose, JJ.,

concur.
-3- 522837 

ADJUDGED that the determination is confirmed, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court