State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 17, 2016 520869 

________________________________

In the Matter of NOEL COOMBS 

JR.,

Petitioner,

v

MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting

Commissioner of Corrections

and Community Supervision,

Respondent.

________________________________

Calendar Date: October 21, 2016

Before: McCarthy, J.P., Egan Jr., Lynch, Clark and Aarons, JJ.

__________

Lebowitz Legal Services, PLLC, Glens Falls (Jack R.

Lebowitz of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, Albany (Allyson B.

Levine of counsel), for respondent.

__________

Lynch, J.

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.

While making his rounds late one evening in petitioner's

housing unit, a correction officer attempted to quell the noise

being made by a group of inmates and asked for their

identification cards, at which point one of the inmates became

unruly and refused to comply with the officer's directive. The

officer moved the inmate into the day room and called for
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assistance from two other correction officers. The inmate

refused to submit to a pat frisk and became combative, prompting

the three officers to use force in attempting to restrain him and

place him in mechanical restraints. Other inmates entered the

day room during this time, one of whom was petitioner, who

repeatedly grabbed one of the officers while he was attempting to

restrain the inmate. Unable to effectively restrain the inmate,

the officers released him, whereupon the remaining inmates,

including petitioner, surrounded the officers, taunted them and

refused several orders to return to their cubes. They also began

shouting phrases, including "Let's kill them," in an effort to

incite the other inmates. Ultimately, these inmates returned to

their cubes.

As a result of this incident, petitioner was charged in a

misbehavior report with refusing a direct order, assaulting

staff, creating a disturbance, interfering with an employee,

engaging in violent conduct and engaging in a demonstration. He

was found guilty of the charges following a tier III disciplinary

hearing and the determination was later affirmed on

administrative appeal. Petitioner subsequently commenced this

CPLR article 78 proceeding challenging the determination. 

Initially, inasmuch as petitioner pleaded guilty to

creating a disturbance, he is precluded from challenging the

sufficiency of the evidence supporting that part of the

determination finding him guilty of this charge (see Matter of

Lewis v Fischer, 112 AD3d 1194, 1195 [2013]; Matter of Key v

Fischer, 72 AD3d 1365, 1366 [2010]). As for the remaining

charges, the detailed misbehavior report, testimony of the

correction officer who prepared it, supporting documentation and

confidential information considered by the Hearing Officer in

camera provide substantial evidence supporting the determination

finding petitioner guilty of these charges (see Matter of

Richardson v Annucci, 133 AD3d 966, 967 [2015]; Matter of Ballou

v New York State Dept. of Correctional Servs., 80 AD3d 1058,

1058-1059 [2011]). Although petitioner initially requested eight

inmates to testify at the hearing, he later abandoned this

request and asked for only four, thereby waiving any claim that

he was improperly denied witnesses (see Matter of Cornwall v

Fischer, 74 AD3d 1507, 1509 [2010]; Matter of Brown v Barkley, 67
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AD3d 1147, 1148 [2009], lv denied 14 NY3d 702 [2010]). Notably,

two of the remaining four inmates who he requested testified at

the hearing while two refused. Given petitioner's failure to

object at the hearing to the legitimacy of the inmates' refusals,

his claim that the Hearing Officer did not conduct a further

inquiry into the reasons for their refusals is not preserved for

our review (see Matter of Gomez v Cunningham, 137 AD3d 1432, 1433

[2016]; Matter of Rafi v Venettozzi, 120 AD3d 1481, 1482 [2014]). 

In view of the foregoing, we find no reason to disturb the

determination of guilt.

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

ADJUDGED that the determination is confirmed, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court