                          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,
                              -2-                522255

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
