Opinion
526258
11-08-2018
In the Matter of Nilo BACHILLER, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Nilo Bachiller, Albion, petitioner pro se. Barbara D. Underwood, Attorney General, Albany (Victor Paladino of counsel), for respondent.
Nilo Bachiller, Albion, petitioner pro se.
Barbara D. Underwood, Attorney General, Albany (Victor Paladino of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Devine, Mulvey and Rumsey, 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.
Following an investigation conducted by the Department of Corrections and Community Supervision's Office of Special Investigations, Narcotics Unit, it was determined that petitioner conspired with his brother to purchase, package and smuggle synthetic marihuana during the brother's visits to the correctional facility in which petitioner was incarcerated. As a result of the investigation, petitioner was charged in a misbehavior report with violating facility visiting procedures, violating facility correspondence procedures, smuggling, conspiring to possess drugs and violating facility telephone procedures. Following a tier III prison disciplinary hearing, petitioner was found guilty of the charges, and a penalty was imposed. On administrative review, that determination was upheld with a modified penalty. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, testimony from its author who conducted the investigation, recorded telephone calls and confidential documentation submitted to the Hearing Officer for in camera review provided substantial evidence to support the determination of guilt (see Matter of Hobson v. New York State Dept. of Corr. & Community Supervision, 159 A.D.3d 1186, 1187, 72 N.Y.S.3d 631 [2018], lv denied 31 N.Y.3d 912, 2018 WL 3149115 [2018] ; Matter of Judge v. Department of Corr. & Community Supervision, 153 A.D.3d 1469, 1470, 59 N.Y.S.3d 724 [2017] ; Matter of Cognata v. Fischer, 85 A.D.3d 1456, 1457, 925 N.Y.S.2d 725 [2011] ). The investigator who authored the misbehavior report testified that, based upon his monitoring of petitioner's phone calls in addition to his training and experience, "cool ranch Doritos" was code for synthetic marihuana (see Matter of Hobson v. New York State Dept. of Corr. & Community Supervision, 159 A.D.3d at 1187, 72 N.Y.S.3d 631 ). In addition, despite acknowledging in the recorded telephone calls his receipt of Doritos, the record evidence does not reflect that petitioner ever received a package containing cool ranch Doritos during the time period in question. Contrary to petitioner's contention, the fact that the directives regarding the control and handling of contraband were not followed is of no moment, as petitioner was not charged with possessing drugs, and the rule prohibiting smuggling was violated when petitioner conspired with another to introduce drugs into the facility (see 7 NYCRR 270.2 [B][14][xv]; Matter of Zimmerman v. Annucci, 139 A.D.3d 1205, 1206, 29 N.Y.S.3d 827 [2016] ; Matter of Gomez v. LeClaire, 53 A.D.3d 994, 995, 862 N.Y.S.2d 633 [2008] ). Although petitioner denied conspiring with and soliciting his brother to smuggle drugs into the facility, such denials, as well as his exculpatory claim that he was not referring to drugs in the recorded telephone calls, presented credibility issues for the Hearing Officer to resolve (see Matter of Judge v. Department of Corr. & Community Supervision, 153 A.D.3d at 1470, 59 N.Y.S.3d 724 ; Matter of Holmes v. Annucci, 153 A.D.3d 1004, 1005, 56 N.Y.S.3d 900 [2017] ).
Petitioner's challenges to the adequacy of the misbehavior report also lack merit. The misbehavior report — which identified his misconduct and the rule violations at issue, and set forth the results of the investigation and the date that the investigation began and concluded — was sufficiently detailed to provide petitioner with adequate notice of the charges and an opportunity to prepare a defense (see 7 NYCRR 251–3.1 [c][1]; Matter of Hobson v. New York State Dept. of Corr. & Community Supervision, 159 A.D.3d at 1187, 72 N.Y.S.3d 631 ; Matter of Caldarola v. Annucci, 148 A.D.3d 1396, 1397, 48 N.Y.S.3d 638 [2017] ; Matter of McDonald v. Fischer, 93 A.D.3d 969, 969, 939 N.Y.S.2d 727 [2012] ). Moreover, the misbehavior report was not untimely. A misbehavior report need only be prepared "as soon as practicable" ( 7 NYCRR 251–3.1 [a] ), and the investigator explained that he wrote the misbehavior report once he obtained the information that he needed to conclude the investigation into petitioner's misconduct (see Matter of Caldarola v. Annucci, 148 A.D.3d at 1397, 48 N.Y.S.3d 638 ; Matter of Scott v. Fischer, 92 A.D.3d 1000, 1001, 937 N.Y.S.2d 479 [2012] ). To the extent that petitioner's remaining contentions are properly before us, they have been considered and found to be without merit.
Garry, P.J., Egan Jr., Devine, Mulvey and Rumsey, JJ., concur.
ADUDGED that the determination is confirmed, without costs, and petition dismissed.