                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 28, 2016                     522142
________________________________

In the Matter of CHAUNCEY
   GIRARD,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   June 6, 2016

Before:   Peters, P.J., Lahtinen, Egan Jr., Rose and Clark, JJ.

                             __________


     Chauncy Girard, Comstock, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Laura
Etlinger 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 with various prison disciplinary
violations arising from three separate incidents that occurred on
the same day. The first misbehavior report charged him with
violent conduct, assaulting staff, interfering with an employee
and refusing a direct order. These charges arose out of an
incident in which petitioner initially refused an order from a
correction officer to leave the mess hall and thereafter became
belligerent and aggressive, requiring several correction officers
to intervene. After being ordered to place his hands against a
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wall, petitioner attempted to strike one of the officers with his
elbow. The second misbehavior report charged him with violent
conduct, refusing a direct order, interfering with an employee
and failing to comply with frisk procedures. According to the
report, petitioner was uncooperative during a special housing
unit admission strip frisk, sitting down on the floor and
refusing to allow the frisk to continue until force had to be
used. The third misbehavior report charged him with refusing a
direct order and failing to comply with urinalysis testing
procedures after he refused a correction officer's request to
provide a urine sample. Following a tier III disciplinary
hearing on the three misbehavior reports, petitioner was found
guilty as charged. That determination was affirmed on
administrative review, with a reduced penalty. This CPLR article
78 proceeding ensued.

      Substantial evidence, including the misbehavior reports,
related documentation and the hearing testimony, supports the
determination of guilt with respect to the charges in the first
and third misbehavior reports (see Matter of Genyard v Annucci,
136 AD3d 1091, 1091 [2016]; Matter of Tavarez v Annucci, 134 AD3d
1374, 1374 [2015]). Petitioner's contentions that he was
assaulted by correction officers in retaliation for grievances he
had submitted and a lawsuit he had commenced against the facility
superintendent and that the first misbehavior report was
fabricated to cover up the assault presented credibility issues
for the Hearing Officer to resolve (see Matter of Lashway v
Fischer, 91 AD3d 1239, 1239-1240 [2012], lv denied 19 NY3d 805
[2012]; Matter of Reynoso v Fischer, 73 AD3d 1315, 1316 [2010]).

      As to the second misbehavior report, respondent concedes,
and we agree, that the charge of violent conduct is not supported
by substantial evidence. Accordingly, we annul that part of the
determination. Inasmuch as the penalty imposed included a loss
of good time, the matter must be remitted for a redetermination
of the penalty (see Matter of Tafari v Annucci, 137 AD3d 1356,
1357 [2016]). Turning to the remaining charges in this report,
the misbehavior report and related documentation, hearing
testimony and the videotape of the incident provide substantial
evidence to support the determination of guilt (see Matter of
Hyatt v Annucci, 127 AD3d 1479, 1480 [2015]; Matter of Toliver v
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Commissioner of N.Y. State Dept. of Corr. & Community
Supervision, 107 AD3d 1263, 1263 [2013]). Contrary to
petitioner's contention, there is nothing in the videotape that
contradicts the second misbehavior report (see Matter of
Lionkingzulu v Fischer, 107 AD3d 1194, 1194 [2013]; Matter of
McLaughlin v Fischer, 69 AD3d 1071, 1072 [2010]).

      Turning to petitioner's procedural challenges, any
deficiencies in petitioner's employee assistance were remedied by
the Hearing Officer, and petitioner has not demonstrated any
prejudice (see Matter of Castillo v Fischer, 120 AD3d 1493, 1493
[2014]; Matter of Pooler v Fischer, 107 AD3d 1256, 1257 [2013],
lv denied 22 NY3d 855 [2013]). Finally, there is no evidence to
support petitioner's contention that he was threatened by the
Hearing Officer either in the facility infirmary or while off the
record during the hearing (see Matter of Almonte v Fischer, 70
AD3d 1156, 1157 [2010], lv denied 14 NY3d 709 [2010]). Moreover,
there is nothing in the record indicating that the Hearing
Officer was biased or that the determination flowed from any
alleged bias (see Matter of Horton v Annucci, 133 AD3d 1002, 1003
[2015]; Matter of Williams v Prack, 130 AD3d 1123, 1124 [2015]).
Petitioner's remaining claims, to the extent that they are
properly before us, have been reviewed and found to be without
merit.

      Peters, P.J., Lahtinen, Egan Jr., Rose and Clark, JJ.,
concur.
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      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of
violent conduct as charged in the second misbehavior report and
imposed a penalty; petition granted to that extent, respondent is
directed to expunge all references to this charge from
petitioner's institutional record, and matter remitted to
respondent for an administrative redetermination of the penalty
on the remaining violations; and, as so modified, confirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
