                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 12, 2016                      521435
________________________________

In the Matter of ROBERT
   THOUSAND,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

ALBERT PRACK, as Director of
   Special Housing and Inmate
   Disciplinary Programs,
                    Respondent.
________________________________


Calendar Date:   March 29, 2016

Before:   Lahtinen, J.P., Garry, Egan Jr., Rose and Lynch, JJ.

                             __________


     Robert Thousand, 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 Franklin County)
to review a determination of the Commissioner of Corrections and
Community Supervision finding petitioner guilty of violating
certain prison disciplinary rules.

      As a group of inmates was proceeding to the meal hall, two
inmates began fighting and petitioner, an inmate near the fight,
failed to comply with orders to place his hands on the cat walk
bar and yelled obscenities. Petitioner was escorted back to his
cell, where he punched a correction officer in the face and a
pick-like sharpened weapon was recovered from his hand. When
petitioner's cell was packed up later that night, his state-
issued razor could not be located. Petitioner was charged in a
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misbehavior report with assaulting staff, engaging in violent
conduct, possessing a weapon, and refusing a direct order as a
result of the incident. He was later charged in a second
misbehavior report with losing state property related to the
missing razor. Following a tier III disciplinary rehearing1 on
both misbehavior reports, petitioner was found guilty as charged.
The determination was affirmed on administrative appeal, and this
CPLR article 78 proceeding ensued.

      We confirm. The misbehavior reports, testimony of four
correction officers involved in the incidents, documentary
evidence and photographs provide substantial evidence to support
the determination of guilt (see Matter of Ramos v Venettozzi, 131
AD3d 1309, 1310 [2015], lv denied 26 NY3d 913 [2015]; Matter of
Ortega v Annucci, 122 AD3d 1051, 1051 [2014]). Petitioner's
testimony that the allegations were falsified and that the weapon
had been planted presented credibility issues for the Hearing
Officer to resolve (see Matter of Genyard v Annucci, 136 AD3d
1091, 1091 [2016]).

      With regard to petitioner's procedural claims, we are
likewise unpersuaded. The extension of the rehearing was timely
requested by the Hearing Officer in order to permit petitioner to
receive his requested assistance, and he has not demonstrated
any prejudice as a result of the brief delay (see Matter of James
v Bezio, 94 AD3d 1312, 1313 [2012]). Contrary to petitioner's
claims, he was not denied the right to call inmates as witnesses,
as the requested inmates signed witness refusal forms. The
Hearing Officer personally questioned the two inmates who had
testified at the first hearing but later signed witness refusal
forms when asked to testify at the rehearing; both confirmed
their unwillingness to testify again and that they had not been
pressured into refusing.2 The Hearing Officer also interviewed a


    1
        The determination following the first tier III
disciplinary hearing was reversed on administrative appeal and
this rehearing was ordered.
    2
        The first inmate indicated that he was unwilling to
testify a second time and the second inmate indicated that he had
                              -3-                521435

third inmate through a correction officer who had questioned him
and ascertained that he had voluntarily refused to testify at
this rehearing. The Hearing Officer made several unsuccessful
efforts to contact a fourth requested inmate who had been
paroled, following which petitioner withdrew this request. A
fifth inmate (who had not been requested at the first hearing)
testified at the rehearing, indicating that he had no
recollection of the incident and, despite an opportunity to probe
his lack of recall, petitioner declined to ask any questions.
Accordingly, we find that there was an adequate inquiry of the
witnesses who refused to testify and petitioner's right to call
witnesses was protected (see Matter of Vansteenburg v State of
N.Y. Dept. of Corrs. & Community Supervision, 128 AD3d 1295, 1296
[2015]; Matter of Hill v Selsky, 19 AD3d 64, 66 [2005]).
Further, we do not agree, as petitioner contends, that the
determination should have been reversed on administrative appeal
based solely upon his submission, for the first time, of unsworn
and unsubstantiated letters from the fifth inmate alleging that
he had been threatened and coerced not to testify by four unnamed
correction officers.

      Finally, the record reflects that the Hearing Officer was
fair and impartial and that the determination of guilt resulted
from the evidence presented at the rehearing rather than from any
alleged Hearing Officer bias (see Matter of Mohamed v Prack, 137
AD3d 1402, 1403 [2016]). Petitioner's remaining claims are
either unpreserved or lack merit.

      Lahtinen, J.P., Garry, Egan Jr., Rose and Lynch, JJ.,
concur.




been asleep at the time of the incident. As the witnesses were
not unavailable, we discern no error in the Hearing Officer's
denial of petitioner's request to admit into evidence, as direct
proof, the purported transcript of the testimony of these
witnesses at the first hearing offered by petitioner, which the
Hearing Officer was not able to authenticate (see CPLR 4517 [a]
[3]).
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      ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
