State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 11, 2014 518754
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In the Matter of ANTHONY DAVIS,
Petitioner,
v MEMORANDUM AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
Commissioner of Corrections
and Community Supervision,
Respondent.
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Calendar Date: October 21, 2014
Before: Lahtinen, J.P., Garry, Rose, Lynch and Clark, JJ.
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Anthony Davis, Stormville, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco of counsel), for respondent.
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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 which found petitioner
guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with
assault, committing a sex offense, interfering with staff, being
out of place, and leaving an assigned area without authorization.
The charges stem from an incident wherein petitioner, while
working as a porter in the infirmary, allegedly touched a nurse's
buttocks and, after being rebuked by the nurse, left his assigned
area and returned to his cell without authorization. Following a
tier III disciplinary hearing, petitioner was found guilty of all
charges. On administrative appeal, the determination was
modified to the extent that the assault charge was dismissed and
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the penalty reduced. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, unusual incident
report and testimony at the hearing, including that of the nurse
involved in the incident, provide substantial evidence to support
the determination of guilt (see Matter of Lewis v Leclaire, 48
AD3d 875, 875 [2008]). Contrary to petitioner's contention, the
intentional and unprovoked rubbing of an intimate part of the
nurse's body constitutes a violation of the rule charged (see 7
NYCRR 270.2 [B] [2] [ii]; see also Matter of Gibson v Coughlin,
142 AD2d 862, 863 [1988]).
We are also unpersuaded by petitioner's contention that he
was improperly denied the right to call a witness. The record
reflects that the requested witness was not present during the
incident and could offer no material or relevant information with
regard to the charges (see Matter of Credell v Fischer, 120 AD3d
857, 857 [2014]). We have reviewed petitioner's remaining
contentions and find them to be without merit.
Lahtinen, J.P., Garry, Rose, Lynch and Clark, JJ., concur.
ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.
ENTER:
Robert D. Mayberger
Clerk of the Court