State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: September 15, 2016 521893 

________________________________

In the Matter of JOSE BERMUDEZ,

Petitioner,

v

MEMORANDUM AND JUDGMENT

THOMAS GRIFFIN, as 

Superintendent of Eastern 

Correctional Facility,

Respondent.

________________________________

Calendar Date: August 8, 2016

Before: Egan Jr., J.P., Lynch, Rose Clark and Mulvey, JJ.

__________

Jose Bermudez, Elmira, 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 female correction officer was releasing a group of

inmates from the block for recreation, petitioner informed her

that he was entitled to take a medical shower on the block. The

officer checked the medical permits and discovered that

petitioner's daily shower was to occur at a different location. 

When she so informed petitioner, he became argumentative in the

presence of three porters who stopped their work to listen to the

exchange. As a result of this incident, petitioner was charged

in a misbehavior report with making a false statement, creating a

disturbance, interfering with an employee and refusing a direct
-2- 521893 

order. Following a tier II disciplinary hearing, he was found

guilty of all of the charges except for refusing a direct order. 

After the determination was affirmed on administrative appeal,

petitioner commenced this CPLR article 78 proceeding challenging

it.

We confirm. The detailed misbehavior report and related

documentation, together with the testimony of the correction

officers who authored and endorsed the misbehavior report,

provide substantial evidence supporting the determination of

guilt (see Matter of Alsaifullah v Fischer, 118 AD3d 1239, 1240

[2014], lv denied 24 NY3d 906 [2014]; Matter of Cornelius v

Fischer, 98 AD3d 779, 780 [2012]). Petitioner's contrary version

of events presented a credibility issue for the Hearing Officer

to resolve (see Matter of Grant v Rock, 122 AD3d 1225, 1226

[2014]; Matter of Vargas v Fischer, 121 AD3d 1138, 1138 [2014],

lv dismissed 25 NY3d 1197 [2015]). In addition, there is no

merit to petitioner's claim that he was improperly denied certain

go-around slips, as the record reveals that they did not exist

despite the Hearing Officer's diligent efforts to locate them

(see Matter of Flores v Fischer, 110 AD3d 1302, 1303 [2013], lv

denied 22 NY3d 861 [2014]; see also Matter of Mendez v Annucci,

126 AD3d 1216, 1217 [2015]). Furthermore, petitioner was not

improperly removed from the hearing, as he engaged in disruptive

behavior after learning of the disposition and penalty (see

Matter of Micolo v Annucci, 140 AD3d 1442, 1443 [2016]; Matter of

Garcia v Prack, 128 AD3d 1244, 1245 [2015]). Inasmuch as

petitioner has already served the penalty, which did not entail

any loss of good time, his challenge to it is now moot (see

Matter of Adams v Superintendent Bollinier, 118 AD3d 1351, 1351

[2014]; Matter of Sheard v Fischer, 107 AD3d 1261, 1262 [2013]). 

Petitioner's remaining contentions are either unpreserved for our

review or are lacking in merit.

Egan Jr., J.P., Lynch, Rose, Clark and Mulvey, JJ., concur.
-3- 521893 

ADJUDGED that the determination is confirmed, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court