                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 26, 2017                   522839
________________________________

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

ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   November 29, 2016

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

                             __________


     Luis Lopez, Dannemora, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Frank Brady
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
refusing a search or frisk, refusing a direct order, violent
conduct, assault on staff and creating a disturbance. The
charges followed an incident that occurred while petitioner was
being pat frisked by a correction officer, in which petitioner
repeatedly punched and kicked that officer, slamming her back
into the cage. When several correction officers arrived to
assist, petitioner punched and assaulted them, refusing direct
orders to stop, and was eventually subdued. Following a tier III
disciplinary hearing, petitioner was found guilty of the charges
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and penalties were imposed, and that determination was upheld
upon administrative review. This CPLR article 78 proceeding
ensued.

      The misbehavior report and supporting documents, including
the incident report and use of force report, as well as the
testimony of several officers involved in the incident and the
officer who investigated it and prepared a report, provide
substantial evidence to support the determination of guilt (see
Matter of Bowen v Annucci, 142 AD3d 1216, 1216 [2016]; Matter of
Sherman v Annucci, 142 AD3d 1196, 1197 [2016]). Petitioner's
denial that he engaged in the charged conduct and claim that,
while being pat frisked, he was struck in the back of the head
and assaulted by correction officers in retaliation for a
grievance he had filed against one of them created a credibility
issue for the Hearing Officer to resolve (see Matter of Sherman v
Annucci, 142 AD3d at 1197). Petitioner's account was not
supported by any other evidence or testimony, and was
contradicted by the accounts of all officers involved.

      Petitioner was not improperly denied the right to call
witnesses. In response to petitioner's request to call the
correction officer involved in the pat frisk who petitioner
assaulted, starting the melee, the Hearing Officer advised him
that she had resigned and was not obligated to testify and, after
she was contacted by a facility disciplinary officer, that she
had refused to do so. The disciplinary officer then testified,
confirming that he contacted the former officer by telephone and
that she had refused to testify. As this requested witness was a
civilian "no longer under [respondent's] control and the Hearing
Officer made reasonable and substantial efforts to contact
[her]," no deprivation of the right to call witnesses occurred
(id. at 1197). Likewise, the three inmates at issue who
petitioner requested as witnesses had declined to testify prior
to the hearing and signed witness refusal forms providing reasons
for their refusal, and the record reflects that the Hearing
Officer interviewed them and confirmed their refusals and
signatures on the refusal forms and that they had not been
coerced. Under these circumstances, there was no violation of
petitioner's right to call witnesses (see Matter of Gano v
Venettozzi, 142 AD3d 1240, 1241 [2016]; Matter of Chandler v
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Annucci, 135 AD3d 1258, 1259 [2016]).

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



      ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
