Opinion
526064
07-26-2018
In the Matter of Edgardo LEBRON, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Edgardo Lebron, Attica, petitioner pro se. Barbara D. Underwood, Attorney General, Albany (Frank Brady of counsel), for respondent.
Edgardo Lebron, Attica, petitioner pro se.
Barbara D. Underwood, Attorney General, Albany (Frank Brady of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Clark, Mulvey and Aarons, JJ.
MEMORANDUM AND JUDGMENT
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.
While a correction officer was conducting a pat frisk of petitioner, the officer found a broken state razor handle with a razor taped to the end in a cardboard sheath inside petitioner's coat pocket. As a result, he was charged in a misbehavior report with destroying state property and possessing a weapon. Following a tier III disciplinary hearing, he was found guilty of the charges and the determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, related documentation and testimony of the correction officers and sergeant involved in the incident provide substantial evidence supporting the determination of guilt (see Matter of Giano v. Prack, 138 A.D.3d 1285, 1285, 31 N.Y.S.3d 233, 31 N.Y.S.3d 233 [2016], lv denied 27 N.Y.3d 912, 2016 WL 4533480 [2016] ; Matter ofPhelps v. Fischer, 108 A.D.3d 1003, 1003–1004, 969 N.Y.S.2d 262 [2013], appeal dismissed 22 N.Y.3d 1046, 981 N.Y.S.2d 353, 4 N.E.3d 364 [2014] ). Petitioner's denial of the charges and assertion that the weapon was planted inside his coat presented a credibility issue for the Hearing Officer to resolve (see Matter of Wood v. Annucci, 158 A.D.3d 856, 857, 70 N.Y.S.3d 599 [2018] ; Matter of Wilson v. Goord, 47 A.D.3d 1102, 1103, 850 N.Y.S.2d 272 [2008] ). Moreover, we do not find that petitioner was improperly denied an inmate witness as there is no indication that this inmate originally agreed to testify and the record contains a refusal form that he signed setting forth a plausible reason for his refusal (see Matter of Mears v. Venettozzi, 150 A.D.3d 1498, 1499, 54 N.Y.S.3d 219 [2017], lv denied 30 N.Y.3d 905, 2017 WL 5492211 [2017] ; Matter of Gano v. Venettozzi, 142 A.D.3d 1240, 1241, 38 N.Y.S.3d 626 [2016] ). Furthermore, upon reviewing the record, we find no indication that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Douglas v. Annucci, 155 A.D.3d 1216, 1217, 63 N.Y.S.3d 272 [2017] ; Matter of Sawyer v. Annucci, 140 A.D.3d 1499, 1500, 35 N.Y.S.3d 511 [2016] ). We have considered petitioner's remaining contentions and find that they are either unpreserved for our review or lacking in merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Egan Jr., J.P., Lynch, Clark, Mulvey and Aarons, JJ., concur.