State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 9, 2015 519363
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In the Matter of HENRY HOBSON,
Petitioner,
v MEMORANDUM AND JUDGMENT
ALBERT PRACK, as Director of
Special Housing and Inmate
Disciplinary Programs,
et al.,
Respondents.
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Calendar Date: February 24, 2015
Before: Lahtinen, J.P., Garry, Devine and Clark, JJ.
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Henry Hobson, Coxsackie, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff of counsel), for respondents.
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Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Greene County) to
review a determination of the Commissioner of Corrections and
Community Supervision which found petitioner guilty of violating
certain prison disciplinary rules.
Petitioner was a member of the Inmate Liaison Committee
and, at a committee meeting, raised an issue regarding alleged
inmate abuse by staff. After an inflammatory and unauthorized
memorandum addressing the same issue was posted throughout the
prison, petitioner was charged in a misbehavior report with
engaging in actions detrimental to the facility and making an
unauthorized address. At the conclusion of a tier III
disciplinary hearing, petitioner was found guilty as charged.
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The determination was upheld on administrative appeal, and this
CPLR article 78 proceeding ensued.
Addressing petitioner's procedural contentions first, "the
charges resulted from an ongoing investigation and involved
numerous and varied contacts, [and] we find that the misbehavior
report adequately apprised petitioner of the charges against him
and provided sufficient information to allow him to prepare a
defense" (Matter of Williams v Fischer, 114 AD3d 977, 977 [2014],
lv denied 23 NY3d 903 [2014]; see Matter of Wilson v Fischer, 120
AD3d 1477, 1478 [2014]). The record further establishes that any
defects in his prehearing assistance were remedied by the Hearing
Officer (see Matter of LaMountain v Fischer, 120 AD3d 1508, 1509
[2014]; Matter of Scott v Prack, 117 AD3d 1300, 1300-1301
[2014]).
Turning to the merits, the charge of engaging in behavior
detrimental to the order of the facility is supported by
substantial evidence in the record, including the misbehavior
report, hearing testimony and confidential evidence (see Matter
of Meachem v Fischer, 108 AD3d 973, 974 [2013]). Contrary to
petitioner's contention, the Hearing Officer properly assessed
the credibility and reliability of the confidential information
(see Matter of Williams v Fischer, 18 NY3d 888, 890 [2012];
Matter of Grate v Annucci, 122 AD3d 1053, 1054 [2014]).
Respondents correctly concede that the charge of making an
unauthorized address is not supported by substantial evidence
but, because petitioner has already served the penalty and no
loss of good time was recommended, remittal for redetermination
of the penalty is unnecessary (see Matter of Garcia v Garner, 122
AD3d 988, 989 [2014]).
Lahtinen, J.P., Garry, Devine 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 making
an unauthorized address; 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