Opinion
12-15-2016
In the Matter of Benjamin THOMPSON, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Benjamin Thompson, Auburn, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Benjamin Thompson, Auburn, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: GARRY, J.P., EGAN JR., LYNCH, CLARK and AARONS, 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 a prison disciplinary rule.
A metal razor with a black electrical tape handle and sheath were found in petitioner's cell during a random search. As a result, petitioner was charged in a misbehavior report with possession of a weapon. Following a tier III disciplinary hearing, petitioner was found guilty of that charge, and that determination was upheld upon administrative review. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, unusual incident report and supporting documentation, as well as the hearing testimony, provide substantial evidence to support the determination of guilt (see Matter of Lacey v. Annucci, 138 A.D.3d 1329, 1330, 28 N.Y.S.3d 637 [2016] ; Matter of Burgos v. Prack, 129 A.D.3d 1434, 1434, 10 N.Y.S.3d 763 [2015] ; Matter of Diaz v. Prack, 127 A.D.3d 1489, 1490, 6 N.Y.S.3d 327 [2015] ). Contrary to petitioner's claim, the hearing testimony does not establish that he was set up, and, moreover, such claim presented a credibility issue for the Hearing Officer to resolve (see Matter of Baysden v. Annucci, 140 A.D.3d 1519, 1519, 35 N.Y.S.3d 517 [2016] ; Matter of Lacey v. Annucci, 138 A.D.3d at 1330, 28 N.Y.S.3d 637). To the extent that petitioner contends that the time of the incident noted in the misbehavior report was slightly different from the time of the incident indicated in the contraband receipt, the record establishes that the Hearing Officer examined these documents and took them into consideration. The misbehavior report contained sufficient detail to provide petitioner with notice of the charge against him, and, in any event, the minor time discrepancy amounts to no more than a "harmless technical defect" (Matter of Eure v. Goord, 271 A.D.2d 786, 787, 705 N.Y.S.2d 449 [2005] ; see Matter of Vines v. Goord, 19 A.D.3d 951, 952, 798 N.Y.S.2d 526 [2005] ). Furthermore, petitioner expressly waived his right to call the author of the misbehavior report or any other witness at the hearing to explain the discrepancy (see Matter of Jones v. Fischer, 101 A.D.3d 1197, 1198, 955 N.Y.S.2d 281 [2012] ; Matter of Hernandez v. Selsky, 62 A.D.3d 1177, 1178, 880 N.Y.S.2d 364 [2009] ). We have reviewed petitioner's remaining contentions and find them to be without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.