                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 8, 2016                   522611
________________________________

In the Matter of DARIUS ASHLEY,
                    Petitioner,
      v

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


Calendar Date:   October 25, 2016

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

                             __________


     Darius Ashley, Malone, 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 three misbehavior reports with
multiple prison disciplinary violations. The first misbehavior
report charged him with assaulting staff, engaging in violent
conduct, disobeying a direct order, possession of a weapon,
possession of an altered item and failing to comply with search
procedures. According to that misbehavior report, petitioner was
ordered to exit his cell for a cell search but, when the cell
gate was open, petitioner moved to the back of his cell, removed
an ice-pick-type weapon from his pocket and attacked the
correction officers, including stabbing one of them seven times.
                              -2-                522611

In addition to the shank-type weapon used in the assault, a
cutting-type weapon consisting of a flat piece of metal sharpened
on one edge was found on petitioner's bed after he was subdued
and placed in mechanical restraints. The second misbehavior
report charged petitioner with possession of a weapon after a
search of his cell following the assault incident revealed two
sharpened toothbrushes inside a baby powder container. The third
misbehavior report charged petitioner with possession of an
authorized item in an unauthorized area and smuggling after he
was placed on contraband watch and a butane lighter was found in
his feces.

      At a combined tier III disciplinary hearing, petitioner
pleaded guilty to the charges contained in the second and third
misbehavior reports. With regard to the first misbehavior
report, petitioner pleaded guilty with an explanation to the
weapons charge and not guilty to the remaining charges.
Following the hearing, petitioner was found guilty of all nine
charges. The determination was affirmed on administrative appeal
with a modification of the penalty imposed. Petitioner then
commenced this CPLR article 78 proceeding.

      Initially, petitioner's plea of guilty to the charges in
the second and third misbehavior reports and to the weapons
charge in the first misbehavior report precludes him from
challenging the sufficiency of the evidence supporting the
determination with respect to those charges (see Matter of
Shufelt v Annucci, 138 AD3d 1336, 1337 [2016]). With regard to
the remaining charges, the detailed misbehavior reports,
supporting documentation, testimony at the hearing and
petitioner's guilty pleas provide substantial evidence to support
the determination of guilt (see Matter of Ford v Smith, 23 AD3d
874, 875 [2005], lv denied 6 NY3d 708 [2006]). Any alleged
inconsistencies in the hearing testimony presented a credibility
issue for the Hearing Officer to resolve (see Matter of Sherman v
Annucci, 142 AD3d 1196, 1197 [2016]; Matter of Hyatt v Fischer,
118 AD3d 1192, 1192 [2014]). Similarly, petitioner's explanation
for engaging in violent conduct against the correction officers
also presented a credibility issue for resolution by the Hearing
Officer (see Matter of Dancy v Goord, 58 AD3d 922, 923 [2009]).
      Petitioner's contention that the Hearing Officer improperly
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presided over the hearing because he was involved in the
investigation of the incident is without merit. The unusual
incident report indicates that the Hearing Officer authorized
that petitioner be placed on contraband watch, which has been
held not to be a basis for disqualification of a Hearing Officer
(see Matter of Perkins v Fischer, 78 AD3d 1355, 1356 [2010]). We
are unpersuaded by petitioner's contention that the penalty
imposed was harsh and excessive. Given the serious nature of the
incident, evidence in the record that the assault was
premeditated and petitioner's disciplinary history, we do not
find that the imposition of 78 months and 16 days in the special
housing unit is so shocking to one's sense of fairness so as to
be excessive (see Matter of Rogers v Prack, 118 AD3d 1223, 1224-
1225 [2014], lv granted 24 NY3d 916 [2015]; Matter of Ford v
Smith, 23 AD3d at 875-876).

      We have reviewed petitioner's remaining contentions,
including that he was improperly denied documentary evidence and
that the Hearing Officer was biased, and find them to be without
merit.

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


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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
