                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: September 22, 2016                   522460
________________________________

In the Matter of PETER LOPEZ,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

DEPARTMENT OF CORRECTIONS AND
   COMMUNITY SUPERVISION,
                    Respondent.
________________________________


Calendar Date:   August 8, 2016

Before:   Peters, P.J., McCarthy, Rose, Clark and Aarons, JJ.

                             __________


     Peter Lopez, Fallsburg, 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 the Commissioner of Corrections and
Community Supervision finding petitioner guilty of violating
certain prison disciplinary rules.

      Petitioner, a legally blind inmate, was observed by a
correction captain walking down the hallway, accompanied by his
inmate mobility escort, with a visor on his head. The captain,
who was new to the facility, called out and attempted to get
petitioner's attention, but petitioner and his escort proceeded
to walk down the hallway without responding. The captain
followed petitioner and took him out of a line of inmates for
questioning. Petitioner indicated that he had a permit for the
visor, but became argumentative when the captain asked him to
produce it, continually asking the captain why it was necessary.
                              -2-                522460

Ultimately, petitioner produced the permit, but, during the
verbal exchange that ensued, he became loudly sarcastic,
continued to interrupt despite the captain's orders to stop and
exhibited disrespectful behavior towards the captain in the
presence of the other inmates and staff. As a result, petitioner
was charged in a misbehavior report with refusing a direct order,
creating a disturbance, interfering with an employee and
harassment. Following a tier III disciplinary hearing, he was
found guilty of the charges. The determination was later upheld
on administrative appeal and this CPLR article 78 proceeding
ensued.

      The detailed misbehavior report, together with the
testimony of the captain who prepared it, provide substantial
evidence supporting that part of the determination finding
petitioner guilty of refusing a direct order, creating a
disturbance and harassment (see Matter of Osborne v Venettozzi,
141 AD3d 990, 991 [2016]; Matter of Byrd v Fischer, 117 AD3d
1263, 1263 [2014]). Even if petitioner was confused as to
whether the captain was initially speaking to him, petitioner's
conduct when he was stopped and requested to produce the permit,
as related by the captain, adequately substantiated these
charges. However, neither the misbehavior report nor the
captain's testimony established that petitioner interfered with
an employee (see 7 NYCRR 270.2 [B] [8] [i]) and, accordingly,
that part of the determination finding him guilty of this charge
must be annulled (see Matter of Soto v Central Off. Review Comm.
of the Dept. of Corr. & Community Supervision, 118 AD3d 1229,
1231 [2014]). Nevertheless, inasmuch as petitioner has already
served the penalty and no loss of good time was imposed, the
matter need not be remitted for a redetermination of the penalty
on the remaining violations (see Matter of Mohamed v Prack, 137
AD3d 1402, 1403 [2016]; Matter of Soto v Central Off. Review
Comm. of the Dept. of Corr. & Community Supervision, 118 AD3d at
1231). We note that petitioner's claim that the misbehavior
report was written in retaliation for a lawsuit that he had filed
presented a credibility issue for the Hearing Officer to resolve
(see Matter of Harriott v Annucci, 131 AD3d 754, 754 [2015], lv
dismissed 27 NY3d 1028 [2016]; Matter of Guillory v Annucci, 125
AD3d 1024, 1024-1025 [2015], lv denied 25 NY3d 905 [2015]).
Furthermore, there is no indication that the Hearing Officer was
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biased or that the determination flowed from any alleged bias
(see Matter of Osborne v Venettozzi, 141 AD3d at 991; Matter of
Sanders v Annucci, 128 AD3d 1156, 1157 [2015], appeal dismissed
26 NY3d 964 [2015]). We have considered petitioner's remaining
contentions and find them to be without merit.

      Peters, P.J., McCarthy, Rose, Clark and Aarons, JJ.,
concur.



      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of
interfering with an employee; petition granted to that extent and
the Commissioner of Corrections and Community Supervision 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
