State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: February 5, 2015 518938 

________________________________

In the Matter of PATRICK

GUILLORY,

Petitioner,

v MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting

Commissioner of Corrections 

and Community Supervision,

Respondent.

________________________________

Calendar Date: December 2, 2014

Before: Peters, P.J., Lahtinen, Garry and Egan Jr., JJ.

__________

Patrick Guillory, Dannemora, petitioner pro se.

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

Schiff of counsel), for respondent.

__________

Proceeding pursuant to CPLR article 78 (transferred to this

Court by order of the Supreme Court, entered in Greene County) to

review a determination of respondent which found petitioner

guilty of violating certain prison disciplinary rules.

While an inmate was assaulting a correction officer,

another inmate encouraged a group of inmates to fight with staff

who were responding to the incident. Petitioner was in the group

and attempted to push open a door in an effort to reach the area

and join in the altercation. As a result, petitioner was charged

in a misbehavior report with inciting a riot, engaging in violent

conduct, being out of place, creating a disturbance and

interfering with an employee. Following a tier III disciplinary

hearing, he was found guilty of the charges and the determination
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was affirmed on administrative appeal. This CPLR article 78

proceeding ensued.

We confirm. The detailed misbehavior report, hearing

testimony and confidential information considered by the Hearing

Officer in camera provide substantial evidence supporting the

determination of guilt (see Matter of Welch v Fischer, 121 AD3d

1139, 1140 [2014]; Matter of Rosa v Fischer, 112 AD3d 1009, 1010

[2013], lv denied 22 NY3d 864 [2014]). Although petitioner

maintained that the misbehavior report was prepared in

retaliation for prior grievances and lawsuits that he had filed,

this presented a credibility issue for the Hearing Officer to

resolve (see Matter of Soto v Central Off. Review Comm. of the

Dept. of Corrections & Community Supervision, 118 AD3d 1229,

1230-1231 [2014]; Matter of Deleon v Prack, 111 AD3d 1204, 1205

[2013]). Moreover, we are not persuaded that petitioner was

denied adequate employee assistance. The record discloses that

petitioner met with his assistant who ascertained which witnesses

agreed to testify. Although the assistant apparently did not

obtain requested documents, the Hearing Officer remedied this

deficiency by providing certain documents to petitioner at the

hearing, and petitioner has not demonstrated that he was

prejudiced (see Matter of Castillo v Fischer, 120 AD3d 1493

[2014]; Matter of Pooler v Fischer, 107 AD3d 1256, 1257 [2013],

lv denied 22 NY3d 855 [2013]).1 We have considered petitioner's

remaining contentions, including his claim that he was improperly

denied witnesses, and find them to be unavailing. Therefore, we

find no reason to disturb the determination of guilt.

Peters, P.J., Lahtinen, Garry and Egan Jr., JJ., concur.

1 Although the Hearing Officer did not provide petitioner 

with all the requested documents, many were redundant to

petitioner's own testimony concerning his retaliation defense.
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ADJUDGED that the determination is confirmed, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court