State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 23, 2015 519187 

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In the Matter of JASON CATO,

Petitioner,

v MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting

Commissioner of Corrections

and Community Supervision,

et al.,

Respondents.

________________________________

Calendar Date: February 24, 2015

Before: Lahtinen, J.P., McCarthy, Egan Jr. and Devine, JJ.

__________

Jason Cato, Malone, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Martin A.

Hotvet 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 Commissioner of Corrections

and Community Supervision which found petitioner guilty of

violating certain prison disciplinary rules.

While a correction officer was counseling petitioner and

another prison inmate inside a dorm, petitioner ran outside the

dorm, refused the correction officer's directive to stop and,

when the correction officer caught up to him, tried to strike the

correction officer in the head with a pen. As a result,

petitioner was charged in a misbehavior report with engaging in

violent conduct, assaulting staff, possessing a weapon,

interfering with an employee, refusing a direct order, being out
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of place, leaving an assigned area and a movement regulation

violation. At a tier III disciplinary hearing, petitioner

pleaded guilty to the charges of being out of place and a

movement regulation violation and otherwise pleaded not guilty. 

After the hearing, petitioner was found guilty of all charges. 

The determination was affirmed upon administrative appeal, and

this proceeding ensued.

We confirm. The detailed misbehavior report and the

hearing testimony of, among others, the author of the report and

two other prison employees who witnessed petitioner attempt to

strike the correction officer provide substantial evidence

supporting the determination of guilt (see Matter of Quezada v

Fischer, 113 AD3d 1004, 1004 [2014]; Matter of Ferguson v

Fischer, 107 AD3d 1272, 1272 [2013]).1 The record is devoid of

evidence that the Hearing Officer was biased (see Matter of Ramos

v Prack, 125 AD3d 1036, 1037 [2015]) or had predetermined

petitioner's guilt (see Matter of Harding v Prack, 118 AD3d 1231,

1232 [2014]). Finally, contrary to petitioner's contention, the

record amply demonstrates that he was not deprived of his right

to call relevant witnesses (see Matter of Clark v Fischer, 120

AD3d 1468, 1469 [2014], lv denied 24 NY3d 912 [2015]).

Petitioner's remaining contentions, including his assertion

that he was denied adequate assistance, have been examined and

found to be lacking in merit.

Lahtinen, J.P., McCarthy, Egan Jr. and Devine, JJ., concur.

1 To the extent that petitioner asserts that substantial

evidence does not support the determination of guilt as to the

two charges he pleaded guilty to, he is precluded from raising

such assertion by virtue of his plea (see Matter of Campbell v

Bedard, 123 AD3d 1278, 1278 [2014]).
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ADJUDGED that the determination is confirmed, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court