                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 28, 2016                     522044
________________________________

In the Matter of JASON A. VEGA,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

ALBERT PRACK, as Director of
   Special Housing and Inmate
   Disciplinary Programs,
   et al.,
                    Respondents.
________________________________


Calendar Date:   June 6, 2016

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

                             __________


     Jason A. Vega, Altona, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco of counsel), for respondents.

                             __________


      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, an inmate, was charged in a misbehavior report
with refusing a direct order, interfering with an employee and
violating movement regulations. According to the report,
petitioner was in the prison yard when several general orders
were given for all inmates to lie face down on the ground.
Petitioner admittedly did not comply and was observed by a
correction officer leaning against a chair after the orders were
given. The officer gave petitioner several more orders to lie
                              -2-                522044

down and petitioner ultimately complied. Following a tier III
disciplinary hearing, petitioner was found guilty as charged and
this determination was affirmed on administrative appeal. This
CPLR article 78 proceeding ensued.

      Initially, respondents concede, and we agree, that the part
of the determination finding petitioner guilty of interfering
with an employee is not supported by the record. The
determination must therefore be annulled to that extent. As the
penalty has been served, and it does not appear that any loss of
good time was imposed, the matter need not be remitted for a
redetermination of the penalty (see Matter of Hobson v Prack, 127
AD3d 1370, 1371 [2015]).

      As to the remaining charges, the misbehavior report and the
hearing testimony, including petitioner's admissions, constitute
substantial evidence of his guilt (see Matter of Garcia v Garner,
122 AD3d 988, 989 [2014]; Matter of Clark v Fischer, 114 AD3d
1116, 1116 [2014]). Petitioner alleges that he was unable to
comply with the order because his arm and shoulder were sore due
to a recent tetanus shot and that lying flat on the ground was
too painful. There is no medical evidence in the record
supporting his contention, however, and, under such
circumstances, petitioner's explanation presented a credibility
issue for the Hearing Officer to resolve (see Matter of Smith v
Annucci, 126 AD3d 1198, 1199 [2015]; Matter of Redmond v Fischer,
116 AD3d 1304, 1304 [2014]). Finally, there is no support in the
record for petitioner's contention that the Hearing Officer was
biased or that he was otherwise denied a fair hearing (see Matter
of Hand v Greene, 118 AD3d 1245, 1246 [2014]; Matter of Collins v
Fischer, 109 AD3d 1040, 1040 [2013], lv dismissed 23 NY3d 954
[2014]). Petitioner's remaining contentions, to the extent that
they are properly before us, have been examined and found to be
without merit.

      Lahtinen, J.P., Garry, Egan Jr., Lynch and Mulvey, JJ.,
concur.
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      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of
interfering with an employee; petition granted to that extent and
the Commissioner of Corrections and Community Supervision is
directed to expunge all references to this charge from
petitioner's institutional record; and, as so modified,
confirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
