JUSTIN CORDOVA v ANTHONY ANNUCCI, ACTING COMMISSIONER, NYS DEPARTMENT OF CORRECTIONS

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IN THE MATTER OF JUSTIN CORDOVA, PETITIONER,V ANTHONY ANNUCCI, ACTING COMMISSIONER, NEW YORKSTATE DEPARTMENT OF CORRECTIONS AND COMMUNITYSUPERVISION, RESPONDENT.WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OFCOUNSEL), FOR PETITIONER.BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OFCOUNSEL), FOR RESPONDENT.Proceeding pursuant to CPLR article 78 (transferred to theAppellate Division of the Supreme Court in the Fourth JudicialDepartment by order of the Supreme Court, Wyoming County [Michael M.Mohun, A.J.], entered January 8, 2018) to review a determination ofrespondent. The determination found after a tier III hearing thatpetitioner had violated various inmate rules.It is hereby ORDERED that the determination is unanimouslyconfirmed without costs and the petition is dismissed.Memorandum: Petitioner commenced this CPLR article 78 proceedingseeking to annul the determination, following a tier III hearing, thatpetitioner violated various inmate rules, including assault on aninmate in violation of inmate rule 100.10 (7 NYCRR 270.2 [B] [1] [i]).Contrary to petitioner’s contention, the determination is supported bysubstantial evidence (see generally People ex rel. Vega v Smith, 66NY2d 130, 139 [1985]), i.e., the misbehavior report and the hearingtestimony of its author, which established that petitioner approachedthe victim from behind and cut him and that, immediately after theincident, the victim identified petitioner as the assailant (seegenerally Matter of Foster v Coughlin, 76 NY2d 964, 966 [1990]). Theconfidential testimony heard by the Hearing Officer provided asufficient basis upon which to assess the credibility of thestatements made by the victim to the author of the report (see Matterof Porter v Annucci, 156 AD3d 1430, 1430-1431 [4th Dept 2017]).Petitioner’s denials raised, at most, an issue of credibility forresolution by the Hearing Officer (seeFoster, 76 NY2d at 966).Entered: June 8, 2018 Mark W. BennettClerk of the Court

JUSTIN CORDOVA v ANTHONY ANNUCCI, ACTING COMMISSIONER, NYS DEPARTMENT OF CORRECTIONS

JUSTIN CORDOVA v ANTHONY ANNUCCI, ACTING COMMISSIONER, NYS DEPARTMENT OF CORRECTIONS

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