Opinion
533177
09-30-2021
In the Matter of Michael ANTINUCHE, Petitioner, v. Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Michael Antinuche, Fallsburg, petitioner pro se. Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Michael Antinuche, Fallsburg, petitioner pro se.
Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Before: Lynch, J.P., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ.
MEMORANDUM AND JUDGMENT Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Sullivan County) to review a determination of the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.
During the course of an investigation, correction officials received confidential information indicating that petitioner had placed a razor blade in a facility recycling bin because he was conspiring with another incarcerated individual to assault a third incarcerated individual in the housing unit regarding a debt owed. A subsequent search of the recycling bins revealed a small piece of folded tissue paper that contained a razor blade. As a result, petitioner was charged in a misbehavior report with conspiring to assault an incarcerated individual, possessing a weapon and engaging in violent conduct involving the threat of violence. Following a tier III disciplinary hearing, petitioner was found guilty of the charges. That determination was upheld upon administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, the testimony of its author and the detailed confidential testimony and information provide substantial evidence supporting the finding of guilt (see Matter of Johansel v. Annucci, 155 A.D.3d 1147, 1148, 62 N.Y.S.3d 836 [2017] ; Matter of Chandler v. Annucci, 135 A.D.3d 1258, 1259, 23 N.Y.S.3d 494 [2016] ; Matter of Baez v. Bellnier, 131 A.D.3d 771, 771, 14 N.Y.S.3d 718 [2015] ; Matter of Pompey v. Prack, 128 A.D.3d 1251, 1252, 8 N.Y.S.3d 499 [2015] ). Contrary to petitioner's contention, the Hearing Officer's confidential interviews with a confidential informant and the correction officer who authored the misbehavior report and conducted the investigation was sufficiently detailed and specific to independently assess the reliability of the confidential information (see Matter of Williams v. Fischer, 18 N.Y.3d 888, 890, 940 N.Y.S.2d 531, 963 N.E.2d 1232 [2012] ; Matter of Ortiz v. Annucci, 163 A.D.3d 1383, 1384, 80 N.Y.S.3d 746 [2018] ; Matter of DeJesus v. Venettozzi, 145 A.D.3d 1275, 1276, 43 N.Y.S.3d 593 [2016], lv denied 29 N.Y.3d 908, 2017 WL 2367345 [2017] ). Furthermore, "there was no reason to think that the informant was motivated by a promise of reward from the prison officials or a personal vendetta against petitioner" ( Matter of Williams v. Fischer, 18 N.Y.3d at 890, 940 N.Y.S.2d 531, 963 N.E.2d 1232 ; see Matter of Carbuccia v. Venettozzi, 194 A.D.3d 1179, 1180, 147 N.Y.S.3d 744 [2021] ).
With regard to petitioner's procedural challenges, the misbehavior report was sufficiently detailed to provide him with adequate notice of the charges so as to enable him to prepare a defense (see 7 NYCRR 251–3.1 [c]). "Inasmuch as the misbehavior report was the result of an ongoing investigation and based upon confidential information, the lack of specific dates and times, as well as the withholding of the names of the other [incarcerated individuals] involved, was acceptable" ( Matter of Ortiz v. Annucci, 163 A.D.3d at 1384, 80 N.Y.S.3d 746 [internal quotation marks and citations omitted]; see Matter of Willacy v. Fischer, 67 A.D.3d 1099, 1100, 889 N.Y.S.2d 261 [2009] ). We also reject petitioner's contention that he was denied the right to call the confidential informant as a witness, as he does not have a right to confront or cross-examine the confidential informant (see Matter of Heard v. Annucci, 155 A.D.3d 1166, 1167, 62 N.Y.S.3d 819 [2017] ; Matter of Tulloch v. Fischer, 90 A.D.3d 1370, 1371, 935 N.Y.S.2d 696 [2011] ; see also Matter of Laureano v. Kuhlmann, 75 N.Y.2d 141, 147–148, 551 N.Y.S.2d 184, 550 N.E.2d 437 [1990] ). We have considered petitioner's remaining contentions and find them to be either unpreserved or without merit.
Lynch, J.P., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.