                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: September 29, 2016                   521773
________________________________

In the Matter of THOMAS
   HENDERSON,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
DONALD VENETTOZZI, as Acting
   Director of Special Housing
   and Inmate Disciplinary
   Programs, et al.,
                    Respondents.
________________________________


Calendar Date:   September 6, 2016

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

                             __________


     Thomas Henderson, Auburn, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Frank Brady
of counsel), for respondents.

                             __________


Peters, P.J.

      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.

      Substantial evidence supports the tier III disciplinary
determination finding petitioner guilty of assault on staff,
violent conduct, refusing a direct order and creating a
disturbance (see Matter of Boyd v Prack, 136 AD3d 1136, 1136
[2016]). Specifically, the hearing testimony and documentary
                              -2-                521773

evidence established that petitioner, while initially unconscious
and unresponsive upon his arrival at the correction facility
medical unit, became combative and uncooperative and ignored
direct orders to comply with medical staff so that his vital
signs could be taken. According to testimony, petitioner engaged
in violent, thrashing behavior and struck two correction officers
with a closed fist while the correction officers attempted to
subdue him. Although petitioner maintained that he was suffering
from some type of seizure, medical testimony established that an
examination of petitioner after the incident did not reveal any
signs of a seizure or other medical explanation for his violent
conduct. Whether petitioner's conduct was involuntary presented
a credibility issue for the Hearing Officer to resolve (see
Matter of Thomas v Goord, 293 AD2d 799, 800 [2002], appeal
dismissed 98 NY2d 727 [2002], lv denied 98 NY2d 613 [2002]). Any
inconsistencies in the testimony and documentary evidence also
presented a credibility issue for the Hearing Officer to resolve
(see Matter of Dawes v Annucci, 122 AD3d 1059, 1061 [2014]).

      Furthermore, we are unpersuaded by petitioner's contention
that he was denied effective employee assistance as the record
demonstrates that the hearing was adjourned in order to provide
petitioner with additional employee assistance; thereafter, any
further alleged inadequacies were appropriately addressed by the
Hearing Officer (see Matter of McMaster v Annucci, 138 AD3d 1289,
1290 [2016], lv denied ___ NY3d ___ [Sept. 13, 2016]). Contrary
to petitioner's contention, we find no error in the Hearing
Officer's denial of certain witnesses whose testimony would have
been redundant or irrelevant (see Matter of Grant v Rock, 122
AD3d 1225, 1226 [2014]). We have reviewed petitioner's remaining
contentions, including that he was improperly denied certain
documentation and that the Hearing Officer was biased, and find
them to be without merit.

     McCarthy, Lynch, Rose and Clark, JJ., concur.
                              -3-                  521773

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
