State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 15, 2016 522255 

________________________________

In the Matter of ROBERTO 

DEJESUS,

Petitioner,

v

MEMORANDUM AND JUDGMENT

DONALD VENETTOZZI, as Acting

Director of Special Housing

and Inmate Disciplinary 

Programs,

Respondent.

________________________________

Calendar Date: October 25, 2016

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

__________

Robert Dejesus, Attica, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Owen Demuth

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 the Commissioner of Corrections and

Community Supervision finding petitioner guilty of violating

certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with assault

on an inmate, possessing a weapon, creating a disturbance and

fighting. As he was being escorted to the special housing unit

following the issuance of the misbehavior report, he threatened

the escorting correction officers, resulting in him being charged

in a second misbehavior report with making threats. At a

combined tier III disciplinary hearing on both reports,
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petitioner pleaded guilty to the charge of making threats in the

second misbehavior report, and, following the hearing, he was

found guilty of all of the charges. This determination was

affirmed on administrative appeal and this CPLR article 78

proceeding ensued.

Petitioner's guilty plea precludes any challenge to the

sufficiency of the evidence supporting the determination of guilt

with respect to the charge in the second misbehavior report (see

Matter of Shufelt v Annucci, 138 AD3d 1336, 1337 [2016]). 

Regarding the challenge to the determination on the first

misbehavior report, the report, hearing testimony and

confidential information provide substantial evidence to support

the determination of guilt (see Matter of Chandler v Annucci, 135

AD3d 1258, 1259 [2016]; Matter of Baez v Bellnier, 131 AD3d 771,

771 [2015]). Contrary to petitioner's contention, the

misbehavior report was adequately detailed to apprise petitioner

of the charges against him and enable him to prepare a defense

(see Matter of Kairis v Smith, 141 AD3d 1054, 1054 [2016]; Matter

of Eugenio v Fischer, 112 AD3d 1017, 1017 [2013], lv denied 22

NY3d 863 [2014]). Moreover, the Hearing Officer's interview with

the correction officer who authored the misbehavior report and

conducted the investigation was sufficiently detailed to

independently assess the reliability of the confidential

information (see Matter of Pompey v Prack, 128 AD3d 1251, 1252

[2015]; Matter of White v Fischer, 121 AD3d 1478, 1479 [2014]). 

Further, the record reflects that the hearing was held in a fair

and impartial manner, and there is nothing to indicate that the

Hearing Officer was biased or that the determination flowed from

any alleged bias (see Matter of Hand v Greene, 118 AD3d 1245,

1246 [2014]; Matter of Paddyfote v Fischer, 118 AD3d 1240, 1241

[2014].

Respondent concedes, however, and we agree, that the

Hearing Officer improperly denied petitioner's request to call

two inmate witnesses. Although the Hearing Officer noted that

the two witnesses had informed petitioner's employee assistant

that they refused to testify, no explanation for the refusal was

given and the Hearing Officer made no attempt to verify the basis

for the refusal. Accordingly, we find that petitioner's

regulatory right to call witnesses was violated and the
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determination of guilt with respect to the charges in the first

misbehavior report must be annulled and the matter remitted for a

new hearing (see Matter of Sorrentino v Fischer, 106 AD3d 1309,

1310 [2013], appeal dismissed 22 NY3d 1060 [2014]; Matter of

Dickerson v Fischer, 105 AD3d 1232, 1232 [2013]).

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

concur.

ADJUDGED that the determination is modified, without costs,

by annulling so much thereof as found petitioner guilty of

assault on an inmate, possessing a weapon, creating a disturbance

and fighting; petition granted to that extent and matter remitted

to the Commissioner of Corrections and Community Supervision for

further proceedings not inconsistent with this Court's decision;

and, as so modified, confirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court