                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: September 22, 2016                   521253
________________________________

In the Matter of AARON ISAIAH
   YOUNG,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
ALBERT PRACK, as Director of
Special Housing and Inmate
Disciplinary Programs,
                    Respondent.
________________________________


Calendar Date:   August 8, 2016

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

                             __________


     Aaron Isaiah Young, Ossining, 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 was charged in a misbehavior report with
assaulting staff, refusing a direct order, engaging in violent
conduct, creating a disturbance and making threats. The
misbehavior report alleged that, while being escorted by a
correction officer, petitioner refused to follow an order to keep
his hands in his pockets and his head facing straight forward,
and he suddenly turned and attempted to strike the officer,
initiating a physical altercation that continued until responding
                              -2-                521253

staff arrived. The misbehavior report further alleged that,
during the altercation, petitioner failed to comply with
directives to stop resisting the officers' attempts to bring him
under their control. A tier III disciplinary hearing resulted in
petitioner being found guilty of three of the charges –
assaulting staff, refusing a direct order and engaging in violent
conduct. The determination was affirmed on administrative
appeal, and petitioner then commenced this CPLR article 78
proceeding.

      We confirm. Substantial evidence supporting the
determination is provided by the misbehavior report, together
with the testimony of the officer involved in the incident, an
officer who witnessed the start of the incident and two officers
who arrived while the incident was ongoing (see Matter of Hyatt v
Annucci, 141 AD3d 977, 978 [2016]; Matter of Boyd v Prack, 136
AD3d 1136, 1136 [2016]; Matter of Blocker v Fischer, 107 AD3d
1285, 1286 [2013]). Petitioner's contention that the officer
assaulted him first and did so in retaliation for information
that he had provided to another staff member presented a
credibility issue for the Hearing Officer to resolve (see Matter
of Medina v Annucci, 141 AD3d 1052, 1053 [2016]; Matter of
Lashway v Fischer, 91 AD3d 1239, 1239-1240 [2012], lv denied 19
NY3d 805 [2012]; Matter of Reynoso v Fischer, 73 AD3d 1315, 1316
[2010]).

      Petitioner argues that the Hearing Officer failed to make a
sufficient inquiry into the reasons why his five inmate witnesses
– all of whom executed witness refusal forms – refused to
testify. This issue is "unpreserved for our review . . . in
light of [petitioner's] failure to object or request that the
Hearing Officer make further inquiry" (Matter of Gomez v
Cunningham, 137 AD3d 1432, 1433 [2016]; see Matter of Geraci v
Annucci, 131 AD3d 767, 768 [2015]; Matter of Hill v Fischer, 69
AD3d 1103, 1103 [2010]). Petitioner's further assertion that he
did not receive witness interview form 2176 is unavailing since
the Hearing Officer discussed the form near the end of the
hearing and read it into the record, without further request or
objection by petitioner (see generally Matter of Dancy v Goord,
58 AD3d 922, 923 [2009]; Matter of Gray v Selsky, 37 AD3d 890,
890 [2007]). Petitioner's remaining arguments have been
                              -3-                  521253

considered and are either unpreserved or lack merit.

      McCarthy, J.P., Egan Jr., Lynch, Clark and Aarons, JJ.,
concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
