Opinion
11-10-2016
In the Matter of Keyron JACKSON, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Keyron Jackson, Comstock, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of counsel), for respondent.
Keyron Jackson, Comstock, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine 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 in two misbehavior reports that resulted from a search of his cell. In the first misbehavior report, he was charged with assaulting staff, refusing a direct order, interfering with an employee and failing to comply with frisk and search procedures. According to the report, petitioner was standing outside his cell while the search was being conducted when he “lunged” into the cell, pushing a correction officer into the cell door, and grabbed an unknown item from his locker and flushed it down the toilet. Based upon the results of the cell search, petitioner was charged in the second misbehavior report with possessing an unauthorized item that had been altered, possessing an altered personal item, participating in an unauthorized exchange and failing to maintain an orderly cell.
At the subsequent hearing held on both misbehavior reports, petitioner pleaded guilty to interfering with an employee, but not guilty to all other charges. Following the hearing, he was found guilty of assaulting staff, refusing a direct order, interfering with an employee, failing to comply with frisk and search procedures and participating in an unauthorized exchange, and not guilty of the remaining charges. The determination was affirmed on administrative appeal and this CPLR article 78 proceeding ensued.
We confirm. The misbehavior report and related documentation, together with the hearing testimony, provide substantial evidence supporting the determination of guilt (see Matter of Hyatt v. Annucci, 125 A.D.3d 1025, 1025–1026, 1 N.Y.S.3d 583 [2015] ; Matter of Brown v. Fischer, 120 A.D.3d 1517, 1517, 992 N.Y.S.2d 463 [2014] ). Petitioner's claim of a lack of evidence that he intended to assault the correction officer is without merit, inasmuch as intent is not an element of the charged misconduct (see 7 NYCRR 270.2 [B][1][ii]; Matter of Canzater–Smith v. Selsky, 28 A.D.3d 899, 900, 813 N.Y.S.2d 254 [2006] ).As to petitioner's procedural challenges, we reject his contention that he was improperly denied the right to call a witness, as the correction officer requested was not present during the incident and his testimony was not shown to be relevant (see Matter of Sanders v. Annucci, 128 A.D.3d 1156, 1157, 7 N.Y.S.3d 733 [2015], appeal dismissed 26 N.Y.3d 964, 18 N.Y.S.3d 600, 40 N.E.3d 578 [2015] ; Matter of Davis v. Annucci, 123 A.D.3d 1279, 1279, 996 N.Y.S.2d 404 [2014] ). Moreover, insofar as the reason for the denial of this witness was expressly stated in the record, the failure to provide petitioner with a written explanation of the denial does not require annulment (see Matter of Davis v. Prack, 95 A.D.3d 1574, 1575, 944 N.Y.S.2d 805 [2012], lv. denied 19 N.Y.3d 812, 2012 WL 4017458 [2012] ; Matter of McLean v. Fischer, 63 A.D.3d 1468, 1469, 884 N.Y.S.2d 265 [2009] ). Finally, we also reject petitioner's contention that the hearing was not completed in a timely manner, given that the Hearing Officer obtained valid extensions and the hearing was completed within the time frame allowed (see Matter of Patterson v. Venettozzi, 140 A.D.3d 1562, 1563, 33 N.Y.S.3d 786 [2016] ; Matter of Sims v. Fischer, 131 A.D.3d 1314, 1315, 16 N.Y.S.3d 356 [2015] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
GARRY, J.P., EGAN JR., ROSE, DEVINE and CLARK, JJ., concur.