State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 28, 2016 521085 

________________________________

In the Matter of BENJAMIN

GARROW,

Petitioner,

v

MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting

Commissioner of Corrections

and Community Supervision,

et al., 

Respondents.

________________________________

Calendar Date: June 6, 2016

Before: Peters, P.J., McCarthy, Rose, Devine and Mulvey, JJ.

__________

Benjamin Garrow, Attica, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Kathleen M.

Treasure 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 finding petitioner guilty of

violating certain prison disciplinary rules.

During an interview with a correction officer regarding a

complaint that petitioner had filed, petitioner accused other

correction officers of discussing his crimes of conviction with

inmates and threatened to inflict serious harm upon a particular

correction officer, prompting prison staff to place petitioner

within mechanical restraints and secure him within a holding pen. 

Thereafter, petitioner was charged in a misbehavior report with

making threats and conduct involving threats of violence. 
-2- 521085 

Following a tier III disciplinary hearing, petitioner was found

guilty of the charges. On administrative appeal, that

determination was upheld. This CPLR article 78 proceeding

ensued. 

We confirm. The detailed misbehavior report and the

hearing testimony of the correction officer who was involved in

the incident and authored that report constitute substantial

evidence supporting the determination of guilt (see Matter of

Toney v Goord, 26 AD3d 613, 614 [2016]; Matter of Bookman v

Fischer, 99 AD3d 1127, 1128 [2012]). Petitioner's claim that the

author of the misbehavior report testified falsely at the hearing

and that the report was written in retaliation for a grievance

that petitioner had previously filed presented credibility issues

for the Hearing Officer to resolve (see Matter of Clark v

Fischer, 120 AD3d 1468, 1469 [2014], lv denied 24 NY3d 912

[2015]; Matter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013],

lv denied 21 NY3d 865 [2013]). In addition, we are unpersuaded

by petitioner's contention that the hearing was not timely

commenced. Where an inmate is confined in a special housing unit

pending a disciplinary hearing, the hearing must commence within

seven days (see 7 NYCRR 251-5.1 [a]), although the day from which

the reckoning is made is excluded from the calculation (see

General Construction Law § 20). As the record establishes that

the incident occurred, the misbehavior report was prepared and

petitioner was confined on September 11, 2014, and the hearing

commenced on September 18, 2014, the hearing was commenced within

the required seven days (see 7 NYCRR 251-5.1 [a]; Matter of Rush

v Bezio, 79 AD3d 1548, 1549 [2010]; Matter of Infante v Selsky,

299 AD2d 612, 613 [2002]). We have considered petitioner's

remaining arguments and find that they are either unpreserved for

our review or are lacking in merit. 

Peters, P.J., McCarthy, Rose, Devine and Mulvey, JJ.,

concur.
-3- 521085 

ADJUDGED that the determination is confirmed, without

costs, and petition dismissed. 

ENTER:

Robert D. Mayberger

Clerk of the Court