State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: September 17, 2015 519889 

________________________________

In the Matter of JOHN RAMOS,

Petitioner,

v

MEMORANDUM AND JUDGMENT

D. VENETTOZZI, as Acting 

Director of Special Housing

and Inmate Disciplinary

Programs, et al.,

Respondents.

________________________________

Calendar Date: August 10, 2015

Before: Peters, P.J., Garry, Devine and Clark, JJ.

__________

John Ramos, Comstock, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H.

Schiff 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 the Commissioner of Corrections and

Community Supervision which found petitioner guilty of violating

certain prison disciplinary rules.

A correction officer observed petitioner involved in a

physical altercation with another inmate. Both petitioner and

the other inmate disregarded the officer's directive to cease

engaging in such conduct. As a result, petitioner was charged in

a misbehavior report with fighting, engaging in violent conduct

and refusing a direct order. Following a tier III disciplinary

hearing, he was found guilty of the charges. The determination

was later affirmed on administrative appeal with a modified
-2- 519889 

penalty and this CPLR article 78 proceeding followed. 

We confirm. The misbehavior report and related

documentation, together with the testimony of the correction

officers familiar with the incident, provide substantial evidence

supporting the determination of guilt (see Matter of James v New

York State Dept. of Corr. & Community Supervision, 127 AD3d 1537,

1537 [2015]; Matter of Nelson v Fischer, 93 AD3d 1059 [2012]). 

Although petitioner maintained that he was not the aggressor and

was only defending himself, and his inmate witnesses backed up

his claims, this presented a credibility issue for the Hearing

Officer to resolve (see Matter of Smith v Rock, 108 AD3d 889, 889

[2013], lv denied 22 NY3d 854 [2013]). Moreover, we find no

merit to petitioner's assertions that he was denied a fair and

impartial hearing. Pursuant to 7 NYCRR 254.1, the Hearing

Officer was authorized to conduct the hearing, and there is no

indication that he was involved in the investigation of the

incident or that his review of the final unusual incident report,

in his capacity as a captain, required his disqualification (see

Matter of Rogers v Prack, 118 AD3d 1223, 1224 [2014], lv granted

24 NY3d 916 [2015]; Matter of Sime v Goord, 30 AD3d 887, 888

[2006], lv denied 7 NY3d 717 [2006]). Furthermore, contrary to

petitioner's claim, the penalty imposed, which was reduced on

administrative appeal, is not so excessive as to be "'shocking to

one's sense of fairness'" (Matter of Taylor v Fischer, 89 AD3d

1298, 1299 [2011], quoting Matter of Phipps v Fischer, 82 AD3d

1396, 1397 [2011]; see Matter of Berry v Fischer, 78 AD3d 1411,

1412 [2010]). Petitioner's remaining contentions have either not

been preserved for our review or are lacking in merit.

Peters, P.J., Garry, Devine and Clark, JJ., concur.
-3- 519889 

ADJUDGED that the determination is confirmed, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court