                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: September 15, 2016                   522497
________________________________

In the Matter of NORMAN
   McBRIDE,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   August 8, 2016

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

                             __________


     Norman McBride, Dannemora, 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.

      Petitioner was charged in a misbehavior report with
engaging in violent conduct, creating a disturbance, failing to
comply with frisk procedures and refusing a direct order.
According to the report, after having observed petitioner slip a
small, white paper object into his left boot, a correction
officer directed petitioner to the wall for a pat frisk.
Although initially compliant, petitioner refused to remove his
left boot and stepped away from the wall. After petitioner
                              -2-                522497

refused further orders to comply, correction officers ultimately
took him to the ground and restraints were applied. Following a
tier III disciplinary hearing, petitioner was found guilty as
charged. The determination was affirmed on administrative appeal
and this CPLR article 78 proceeding ensued.

      Initially, respondent concedes, and we agree, that
substantial evidence does not support the finding that petitioner
was guilty of the charge of engaging in violent conduct.
Accordingly, we annul that part of the determination. Given that
no loss of good time was imposed and petitioner has already
served the penalty, the matter need not be remitted for a
reassessment of the penalty (see Matter of Young v Keyser, 136
AD3d 1084, 1084-1085 [2016]; Matter of Chisholm v Annucci, 135
AD3d 1279, 1279 [2016]).

      As to the remaining charges, the misbehavior report and
hearing testimony provide substantial evidence to support the
determination of guilt (see Matter of Rizzuto v Eastman, 134 AD3d
1308, 1308 [2015]; Matter of Nieves v Annucci, 123 AD3d 1368,
1368 [2014]). Although petitioner testified that a medical
condition prevented him from complying with the frisk procedures
and the order to remove his boot, and that medical condition was
confirmed by the facility nurse, the nurse also testified that
there were no documented functional limitations attributed to the
condition in petitioner's medical file. This conflicting
evidence presented a credibility issue for the Hearing Officer to
resolve (see Matter of Rogers v Fischer, 96 AD3d 1318, 1318
[2012]; Matter of Capocetta v Fischer, 72 AD3d 1377, 1378 [2010],
lv denied 15 NY3d 706 [2010]). Finally, there is nothing in the
record to indicate that petitioner was denied a fair hearing or
that the determination of guilt was the result of any alleged
bias on the part of the Hearing Officer or a predetermination of
guilt prior to the hearing (see Matter of Fowler v Fischer, 106
AD3d 1344, 1345 [2013], lv denied 21 NY3d 865 [2013]; Matter of
Barnes v Bezio, 86 AD3d 884, 885 [2011]).

     Garry, J.P., Lynch, Rose, Clark and Mulvey, JJ., concur.
                              -3-                  522497

      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of
engaging in violent conduct; petition granted to that extent and
respondent is directed to expunge all references to this charge
from petitioner's institutional record; and, as so modified,
confirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
