State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 8, 2016 522611 

________________________________

In the Matter of DARIUS ASHLEY, 

Petitioner, 

v

ANTHONY J. ANNUCCI, as Acting MEMORANDUM AND JUDGMENT

Commissioner of Corrections 

and Community Supervision,

Respondent.

________________________________

Calendar Date: October 25, 2016

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

__________

Darius Ashley, Malone, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Frank Brady

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 three misbehavior reports with

multiple prison disciplinary violations. The first misbehavior

report charged him with assaulting staff, engaging in violent

conduct, disobeying a direct order, possession of a weapon,

possession of an altered item and failing to comply with search

procedures. According to that misbehavior report, petitioner was

ordered to exit his cell for a cell search but, when the cell

gate was open, petitioner moved to the back of his cell, removed

an ice-pick-type weapon from his pocket and attacked the

correction officers, including stabbing one of them seven times. 
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In addition to the shank-type weapon used in the assault, a

cutting-type weapon consisting of a flat piece of metal sharpened

on one edge was found on petitioner's bed after he was subdued

and placed in mechanical restraints. The second misbehavior

report charged petitioner with possession of a weapon after a

search of his cell following the assault incident revealed two

sharpened toothbrushes inside a baby powder container. The third

misbehavior report charged petitioner with possession of an

authorized item in an unauthorized area and smuggling after he

was placed on contraband watch and a butane lighter was found in

his feces.

At a combined tier III disciplinary hearing, petitioner

pleaded guilty to the charges contained in the second and third

misbehavior reports. With regard to the first misbehavior

report, petitioner pleaded guilty with an explanation to the

weapons charge and not guilty to the remaining charges. 

Following the hearing, petitioner was found guilty of all nine

charges. The determination was affirmed on administrative appeal

with a modification of the penalty imposed. Petitioner then

commenced this CPLR article 78 proceeding.

Initially, petitioner's plea of guilty to the charges in

the second and third misbehavior reports and to the weapons

charge in the first misbehavior report precludes him from

challenging the sufficiency of the evidence supporting the

determination with respect to those charges (see Matter of

Shufelt v Annucci, 138 AD3d 1336, 1337 [2016]). With regard to

the remaining charges, the detailed misbehavior reports,

supporting documentation, testimony at the hearing and

petitioner's guilty pleas provide substantial evidence to support

the determination of guilt (see Matter of Ford v Smith, 23 AD3d

874, 875 [2005], lv denied 6 NY3d 708 [2006]). Any alleged

inconsistencies in the hearing testimony presented a credibility

issue for the Hearing Officer to resolve (see Matter of Sherman v

Annucci, 142 AD3d 1196, 1197 [2016]; Matter of Hyatt v Fischer,

118 AD3d 1192, 1192 [2014]). Similarly, petitioner's explanation

for engaging in violent conduct against the correction officers

also presented a credibility issue for resolution by the Hearing

Officer (see Matter of Dancy v Goord, 58 AD3d 922, 923 [2009]). 

Petitioner's contention that the Hearing Officer improperly
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presided over the hearing because he was involved in the

investigation of the incident is without merit. The unusual

incident report indicates that the Hearing Officer authorized

that petitioner be placed on contraband watch, which has been

held not to be a basis for disqualification of a Hearing Officer

(see Matter of Perkins v Fischer, 78 AD3d 1355, 1356 [2010]). We

are unpersuaded by petitioner's contention that the penalty

imposed was harsh and excessive. Given the serious nature of the

incident, evidence in the record that the assault was

premeditated and petitioner's disciplinary history, we do not

find that the imposition of 78 months and 16 days in the special

housing unit is so shocking to one's sense of fairness so as to

be excessive (see Matter of Rogers v Prack, 118 AD3d 1223, 1224-

1225 [2014], lv granted 24 NY3d 916 [2015]; Matter of Ford v

Smith, 23 AD3d at 875-876).

We have reviewed petitioner's remaining contentions,

including that he was improperly denied documentary evidence and

that the Hearing Officer was biased, and find them to be without

merit. 

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

concur.

ADJUDGED that the determination is confirmed, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court