Opinion
No. 532803
06-23-2022
In the Matter of Devin Lee Jones, Petitioner, v. Anthony J. Annucci, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Devin Lee Jones, Attica, petitioner pro se. Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), respondent.
Calendar Date: May 20, 2022
Devin Lee Jones, Attica, petitioner pro se.
Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), respondent.
Before: Garry, P.J., Aarons, Pritzker, Ceresia and McShan, JJ.
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 a misbehavior report with violent conduct, creating a disturbance, fighting, possessing a weapon and refusing a direct order. According to the misbehavior report, a correction officer observed petitioner and another incarcerated individual "exchanging closed fist punches to the head and body areas." Both refused to comply with de-escalation attempts or orders to stop. After the two were eventually separated, each was examined for injuries, and it was determined that the other incarcerated individual had injuries consistent with an "unrecovered stabbing type weapon." Petitioner admitted to fighting but denied possessing a weapon or engaging in violent conduct. Following a tier III disciplinary hearing, petitioner was found guilty of all charges. On administrative appeal, the charge for creating a disturbance was dismissed, but the determination was otherwise affirmed. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, the use of force report and the testimony of the correction officer who examined the other incarcerated individual's injuries provide substantial evidence to support the determination of guilt, despite the fact that no weapon was ever recovered (see Matter of Hill v Annucci, 198 A.D.3d 1316, 1316 [2021]; Matter of Townsend v Noeth, 170 A.D.3d 1353, 1353 [2019]). We are unpersuaded by petitioner's contention that the misbehavior report did not sufficiently apprise him of or allow him to prepare a meaningful defense to the weapon charge against him as the report specifically alleged that the other incarcerated individual had injuries consistent with a stabbing type weapon (see 7 NYCRR 251-3.1 [c] [1]; Matter of Grant v Capra, 200 A.D.3d 1443, 1443 [2021]; Matter of Shearer v Annucci, 155 A.D.3d 1277, 1278 [2017]; Matter of Hernandez v Prack, 108 A.D.3d 965, 966 [2013]).
We further find unavailing petitioner's contention that he did not have notice of what constituted violent conduct. Petitioner was read the definition of violent conduct at the hearing, and such language was "sufficiently particular to provide a person of ordinary intelligence with notice that engaging in a physical altercation with another [incarcerated individual] is proscribed conduct" (Matter of Brown v Selsky, 5 A.D.3d 905, 906 [2004]; see 7 NYCRR 270.2 [B] [5] [ii]; cf. Matter of Doane v Annucci, 168 A.D.3d 1290, 1290 [2019]). Finally, petitioner's assertion that the Hearing Officer was biased for not deciding the foregoing issues in his favor is not preserved for our review as petitioner did not raise this issue in his administrative appeal (see Matter of Urena v Keyser, 197 A.D.3d 1452, 1452 [2021]; Matter of Duchnowski v Annucci, 169 A.D.3d 1137, 1137 [2019]). Were we to reach this issue, we would find "no indication that the Hearing Officer was biased, that the hearing was conducted in an unfair manner or that the determination flowed from any alleged bias" (Matter of Torres v Annucci, 144 A.D.3d 1289, 1290 [2016]; see Matter of Urena v Keyser, 197 A.D.3d at 1452-1453).
Garry, P.J., Aarons, Pritzker, Ceresia and McShan, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.