                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 12, 2016                      521693
________________________________

In the Matter of WILLIAM JONES,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

BRIAN FISCHER, as Commissioner
   of Corrections and Community
   Supervision,
                    Respondent.
________________________________


Calendar Date:   March 29, 2016

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

                             __________


     William Jones, Auburn, 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 respondent finding petitioner guilty of
violating certain prison disciplinary rules.

      While a group of inmates was being escorted to the prison
recreation yard, a fight broke out and some of the inmates forced
their way through the gate as a correction officer was attempting
to secure it. Petitioner was charged in a misbehavior report
with engaging in violent conduct, creating a disturbance,
disobeying a direct order and assaulting another inmate.
Following a tier III disciplinary hearing, petitioner was found
not guilty of assaulting an inmate and guilty of the remaining
                              -2-                521693

charges.1 The determination was affirmed on administrative
appeal, and this CPLR article 78 proceeding ensued.

      Initially, as respondent concedes, the record lacks
substantial evidence that a direct order was given to petitioner
which he refused and, thus, the determination must be modified
(see Matter of Tafari v Annucci, 137 AD3d 1356, 1357 [2016];
Matter of Marino v Martuscello, 131 AD3d 749, 749 [2015], lv
denied 26 NY3d 910 [2015], cert denied ___ US ___ [Apr. 18,
2016]). Given that petitioner has served the penalty and loss of
good time was not imposed, remittal for a redetermination of the
penalty is not necessary (see Matter of Marino v Martuscello, 131
AD3d at 749-750).

      With regard to the remaining charges, the documentary
evidence, misbehavior report and testimony of its author, the
correction officer directly involved, provide substantial
evidence that petitioner engaged in violent conduct and created a
disturbance (see Matter of Genyard v Annucci, 136 AD3d 1091, 1091
[2016]). The officer observed the fight and recounted that,
during the fight involving other inmates, he saw petitioner
fighting with another identified inmate. Petitioner's testimony
that he did not engage in fighting other than to defend himself
presented a credibility issue for the Hearing Officer to resolve
(see Matter of Boyd v Prack, 136 AD3d 1136, 1136 [2016]).
Contrary to his claim, the misbehavior report provided adequate
notice of the rule violations and his specific conduct in
"fighting with" another identified inmate during the melee so as
to enable him to prepare a defense (see Matter of Hyatt v
Annucci, 137 AD3d 1382, 1382 [2016]). Further, petitioner
received all of the existing and relevant documents that he
requested; given that he was found not guilty on the assault
charge and that the medical records and injuries of the other
inmates involved were not relevant to the remaining charges or


    1
        Petitioner was also charged in a separate misbehavior
report shortly after the fight with being under the influence of
alcohol or an intoxicant. This charge was heard in a combined
hearing on both of the misbehavior reports, following which
petitioner was found not guilty of this charge.
                              -3-                  521693

relied upon in the disposition, he was not prejudiced by the
denial of this request or by his employee assistant's failure to
obtain them (see Matter of Hardy v Smith, 87 AD3d 779, 780
[2011]; Matter of Abdul-Khaliq v Goord, 34 AD3d 872, 872-873
[2006]; Matter of Huggins v Goord, 28 AD3d 891, 891-892 [2006]).
Finally, petitioner was not improperly denied witnesses as the
correction officers requested were not present during the
incident and their testimony was not shown to be relevant (see
Matter of Sanders v Annucci, 128 AD3d 1156, 1157 [2015], appeal
dismissed 26 NY3d 964 [2015]; Matter of Wilson v Fischer, 120
AD3d 1477, 1478 [2015]). Petitioner's remaining claims are
either unpreserved or lack merit.

     Lahtinen, J.P., Garry, Rose, Clark and Aarons, JJ., concur.



      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of
refusing a direct order; petition granted to that extent and
respondent is directed to expunge all reference to this charge
from petitioner's institutional record; and, as so modified,
confirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
