                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 21, 2016                     521416
________________________________

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


Calendar Date:   June 6, 2016

Before:   Lahtinen, J.P., Garry, Lynch, Clark and Aarons, JJ.

                             __________


     Shane Hyatt, Malone, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Kathleen M.
Treasure of counsel), for respondent.

                             __________


      Proceeding pursuant to CPLR article 78 (transferred to this
court by order of the Supreme Court, entered in Franklin County)
to review a determination of respondent finding petitioner guilty
of violating certain prison disciplinary rules.

      While in the correctional facility's physical therapy room,
petitioner refused a direct order to hold out his hands for the
application of restraints and attempted to strike the correction
officer who gave him the order, prompting correction officers to
subdue and place petitioner in restraints. As a result,
petitioner was charged in a misbehavior report with refusing a
direct order, attempted assault and violent conduct. Following a
tier III disciplinary hearing, petitioner was found guilty of the
charges. On administrative appeal, that determination was upheld
with a modified penalty. This CPLR article 78 proceeding ensued.
                              -2-                521416


      We confirm. As to the disciplinary determination, we find
that the misbehavior report, the testimony of the correction
officers and physical therapist who were involved and witnessed
the incident and the use of force report and accompanying
documentation constitute substantial evidence supporting the
determination of guilt (see Matter of White v Prack, 131 AD3d
1333, 1334 [2015], lv denied 26 NY3d 920 [2016]; Matter of
Lamphear v Fischer, 76 AD3d 1166, 1166 [2010]).1 While the
testimony and written statements from petitioner's inmate
witnesses generally corroborated his allegations that it was he
who was assaulted, the Hearing Officer was entitled to assess the
varying narratives of the incident presented at the hearing and
resolve the issues of credibility (see Matter of Wilson v
Annucci, 129 AD3d 1422, 1422 [2015]).

      Turning to petitioner's procedural contentions, we reject
his claim that he was improperly denied the right to call as
witnesses a facility nurse and doctor who had examined him after
the incident. Inasmuch as those witnesses did not witness the
incident and petitioner's injuries were documented by the nurse
in a use of force report that was admitted into evidence, their
testimony would have been irrelevant and redundant (see Matter of
Blocker v Fischer, 107 AD3d 1285, 1286 [2013]; Matter of Valerio
v New York State Dept. of Correctional Servs., 67 AD3d 1228, 1228
[2009]). Nor was petitioner improperly denied the right to call
certain inmate witnesses, all of whom did not witness the
incident and would have provided testimony that was irrelevant or
redundant. The remaining two inmate witnesses did not agree to
testify prior to the hearing, and the reasons for their refusal
were set forth in the record (see Matter of Broadie v Annucci,


    1
        Upon our review of the audio cassette tape of the
testimony of the correction officer who was present at the
incident and assisted with the use of force, we agree with
petitioner that this witness testified, "I did not actually see
what was going on," while the transcript erroneously described
his testimony as, "I did actually see what was going on."
Notwithstanding this discrepancy, the cumulative testimony
provides substantial evidence for the determination.
                              -3-                  521416

131 AD3d 1324, 1324-1325 [2015]). Finally, petitioner was not
denied the right to present documentary evidence in the form of a
videotape recording of the physical therapy room, as the record
reveals that no such videotape of the incident was available, and
the other videotapes requested by petitioner would have been
irrelevant (see Matter of Barclay v Knowles, 79 AD3d 1550, 1550-
1551 [2010]; Matter of Chavis v Goord, 58 AD3d 954, 955 [2009]).
Petitioner's remaining claims, including his contention that he
was denied effective employee assistance, have been examined and
found to be without merit.

      Lahtinen, J.P., Garry, 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
