Calendar Date: April 3, 2018Before: Garry, P.J., McCarthy, Aarons, Rumsey and Pritzker, JJ.__________Oscar Fernandez, Auburn, petitioner pro se.Barbara D. Underwood, Acting Attorney General, Albany(Victor Paladino of counsel), for respondents.__________Proceeding pursuant to CPLR article 78 (transferred to thisCourt by order of the Supreme Court, entered in Albany County) toreview a determination of respondent Commissioner of Correctionsand Community Supervision finding petitioner guilty of violatingcertain prison disciplinary rules.Upon investigating a disturbance in a stairwell leading outof the facility’s mess hall, petitioner was observed running downthat stairwell away from the location where correction officerssoon thereafter discovered another inmate bleeding and lying onthe ground with a handmade shank-type weapon on the ground nextto him. After the inmate provided a description of his attackerthat matched petitioner, petitioner was charged in a misbehaviorreport with assaulting another inmate, violent conduct, creatinga disturbance and possessing a weapon. Following a tier IIIdisciplinary rehearing,1 petitioner was found guilty as charged.That determination was upheld upon administrative review. ThisCPLR article 78 proceeding ensued.Initially, to the extent that petitioner’s challengesrelate to his July 2016 determination of guilt, that part of hispetition is moot because the July 2016 determination wasadministratively reversed (see Matter of Boykin v Prack, 137 AD3d1393, 1394 [2016]). With regard to the October 2016determination, the misbehavior report, hearing testimony anddocumentary evidence provide substantial evidence to support thefinding of guilt (see Matter of Davis v Annucci, 137 AD3d 1437,1438 [2016]; Matter of Caraway v Goord, 34 AD2d 962, 963 [2006]).“Although the incident was not witnessed, the circumstantialevidence and the reasonable inferences drawn therefrom provide asufficient basis for a finding of guilt” (Matter of Flores vFischer, 110 AD3d 1302, 1303 [2013] [citations omitted], lvdenied 22 NY3d 861 [2014]; see Matter of Howard v Fischer, 108AD3d 950, 950 [2013]; Matter of Gourdine v Goord, 18 AD3d 1045,1045-1046 [2005]). Moreover, the contrary testimony ofpetitioner and his inmate witnesses presented a credibility issuefor the Hearing Officer to resolve (see Matter of Davis vAnnucci, 137 AD3d at 1438; Matter of Boyd v Prack, 136 AD3d 1136,1136 [2016]).Contrary to petitioner’s contention, the misbehavior reportwas sufficiently specific and provided adequate information toafford petitioner an opportunity to discern his role in theincident and to prepare a meaningful defense (see 7 NYCRR 251-3.1[c]; Matter of Robinson v Lee, 155 AD3d 1169, 1170 [2017]; Matterof King v Annucci, 155 AD3d 1145, 1146 [2017]). We further findthat petitioner was provided meaningful employee assistance, andhe has not demonstrated that he was prejudiced by his assistant’salleged inadequacies. Except for the confidential inmate injuryreport and unavailable video of the incident, petitioner wasprovided with certain documents that he had requested, includinga redacted unusual incident report and to/from memoranda, and hisemployee assistant interviewed his requested witnesses toascertain whether they would be willing to testify at the hearing(see 7 NYCRR 251-4.2; compare Matter of Rivera v Prack, 122 AD3d1226, 1227 [2014]). Moreover, petitioner’s allegation that hisassistant failed to obtain statements from the requested inmatewitnesses — all of whom either testified at the hearing or signedwitness refusal forms (see Matter of Campos v Prack, 143 AD3d1020, 1021-1022 [2016]) — prior to the hearing is of noconsequence, as those witnesses were not present during theincident and had no firsthand knowledge of the incident (seeMatter of Garcia v Annucci, 154 AD3d 1246, 1247-1248 [2017];Matter of Gonzalez v Annucci, 149 AD3d 1455, 1456 [2017]; Matterof Perretti v Fischer, 58 AD3d 999, 1002 [2009], lv denied 12NY3d 709 [2009]). We have considered petitioner’s remainingcontentions and find them to be either unpreserved for our reviewor lacking in merit.Garry, P.J., McCarthy, Aarons, Rumsey and Pritzker, JJ.,concur.ADJUDGED that the determination is confirmed, withoutcosts, and petition dismissed.ENTER:Robert D. MaybergerClerk of the Court
