State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: May 12, 2016 521693 

________________________________

In the Matter of WILLIAM JONES,

Petitioner,

v MEMORANDUM AND JUDGMENT

BRIAN FISCHER, as Commissioner 

of Corrections and Community 

Supervision, 

Respondent.

________________________________

Calendar Date: March 29, 2016

Before: Lahtinen, J.P., Garry, Rose, Clark and Aarons, JJ.

__________

William Jones, Auburn, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J.

Mastracco 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.

While a group of inmates was being escorted to the prison

recreation yard, a fight broke out and some of the inmates forced

their way through the gate as a correction officer was attempting

to secure it. Petitioner was charged in a misbehavior report

with engaging in violent conduct, creating a disturbance,

disobeying a direct order and assaulting another inmate. 

Following a tier III disciplinary hearing, petitioner was found

not guilty of assaulting an inmate and guilty of the remaining
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charges.1 The determination was affirmed on administrative

appeal, and this CPLR article 78 proceeding ensued.

Initially, as respondent concedes, the record lacks

substantial evidence that a direct order was given to petitioner

which he refused and, thus, the determination must be modified

(see Matter of Tafari v Annucci, 137 AD3d 1356, 1357 [2016];

Matter of Marino v Martuscello, 131 AD3d 749, 749 [2015], lv

denied 26 NY3d 910 [2015], cert denied ___ US ___ [Apr. 18,

2016]). Given that petitioner has served the penalty and loss of

good time was not imposed, remittal for a redetermination of the

penalty is not necessary (see Matter of Marino v Martuscello, 131

AD3d at 749-750). 

With regard to the remaining charges, the documentary

evidence, misbehavior report and testimony of its author, the

correction officer directly involved, provide substantial

evidence that petitioner engaged in violent conduct and created a

disturbance (see Matter of Genyard v Annucci, 136 AD3d 1091, 1091

[2016]). The officer observed the fight and recounted that,

during the fight involving other inmates, he saw petitioner

fighting with another identified inmate. Petitioner's testimony

that he did not engage in fighting other than to defend himself

presented a credibility issue for the Hearing Officer to resolve

(see Matter of Boyd v Prack, 136 AD3d 1136, 1136 [2016]). 

Contrary to his claim, the misbehavior report provided adequate

notice of the rule violations and his specific conduct in

"fighting with" another identified inmate during the melee so as

to enable him to prepare a defense (see Matter of Hyatt v

Annucci, 137 AD3d 1382, 1382 [2016]). Further, petitioner

received all of the existing and relevant documents that he

requested; given that he was found not guilty on the assault

charge and that the medical records and injuries of the other

inmates involved were not relevant to the remaining charges or

1 Petitioner was also charged in a separate misbehavior

report shortly after the fight with being under the influence of

alcohol or an intoxicant. This charge was heard in a combined

hearing on both of the misbehavior reports, following which

petitioner was found not guilty of this charge.
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relied upon in the disposition, he was not prejudiced by the

denial of this request or by his employee assistant's failure to

obtain them (see Matter of Hardy v Smith, 87 AD3d 779, 780

[2011]; Matter of Abdul-Khaliq v Goord, 34 AD3d 872, 872-873

[2006]; Matter of Huggins v Goord, 28 AD3d 891, 891-892 [2006]). 

Finally, petitioner was not improperly denied witnesses as the

correction officers requested were not present during the

incident and their testimony was not shown to be relevant (see

Matter of Sanders v Annucci, 128 AD3d 1156, 1157 [2015], appeal

dismissed 26 NY3d 964 [2015]; Matter of Wilson v Fischer, 120

AD3d 1477, 1478 [2015]). Petitioner's remaining claims are

either unpreserved or lack merit.

Lahtinen, J.P., Garry, Rose, Clark and Aarons, JJ., concur.

ADJUDGED that the determination is modified, without costs,

by annulling so much thereof as found petitioner guilty of

refusing a direct order; petition granted to that extent and

respondent is directed to expunge all reference to this charge

from petitioner's institutional record; and, as so modified,

confirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court