Opinion
531907
09-23-2021
In the Matter of Jamel BLACK, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Jamel Black, Malone, petitioner pro se. Letitia James, Attorney General, Albany (Dustin J. Brockner of counsel), for respondent.
Jamel Black, Malone, petitioner pro se.
Letitia James, Attorney General, Albany (Dustin J. Brockner of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Clark, Aarons and Pritzker, 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.
Petitioner was charged in a misbehavior report with fighting, assault, violent conduct, possessing a weapon, creating a disturbance, possessing an altered item and smuggling. According to the report, a correction officer observed petitioner exchanging closed fist punches with another incarcerated individual, and the officer gave several orders for them to stop fighting before they complied. After the altercation, a search of the area in proximity to petitioner revealed two toothbrushes with rubber band handles, each of which were sharpened to a point at one end with a piece of sharpened metal melted into the tip. The other incarcerated individual involved in the altercation sustained a puncture wound that could be caused by the weapons that were discovered near petitioner. Upon frisking petitioner, correction officers also discovered petitioner to be in possession of paper items that were improvised into body armor and attached to his torso using clothesline cord. Following a tier III disciplinary hearing, petitioner was found not guilty of possessing an altered item and found guilty of assault, violent conduct, possessing a weapon, creating a disturbance and smuggling. The determination was subsequently affirmed on administrative review, and this CPLR article 78 proceeding ensued.
Although petitioner was charged in the misbehavior report with fighting, that charge was not adjudicated at the hearing or listed in the written hearing disposition.
We confirm. Contrary to petitioner's contention, the misbehavior report, related documentation and hearing testimony provide substantial evidence supporting the determination of guilt (see Matter of Bouknight v. Annucci, 181 A.D.3d 1079, 1079–1080, 121 N.Y.S.3d 388 [2020] ; Matter of Townsend v. Noeth, 170 A.D.3d 1353, 1353, 95 N.Y.S.3d 654 [2019] ; Matter of Warren v. Fischer, 63 A.D.3d 1466, 1467, 884 N.Y.S.2d 779 [2009] ; Matter of Dozier v. Selsky, 54 A.D.3d 1074, 1075, 864 N.Y.S.2d 188 [2008] ). Petitioner's contention that he did not possess the two weapons is belied by the discovery of these items near petitioner and the documented injuries of the other incarcerated individual (see Matter of Bouknight v. Annucci, 181 A.D.3d at 1080, 121 N.Y.S.3d 388 ; Matter of Townsend v. Noeth, 170 A.D.3d at 1353, 95 N.Y.S.3d 654 ). In any event, petitioner's claim that he did not possess the weapons that were found at the location of the altercation, as well as his exculpatory statements and denial of his involvement in the incident, raised a credibility issue for the Hearing Officer to resolve (see Matter of Bouknight, 181 A.D.3d at 1080, 121 N.Y.S.3d 388 ; Matter of Spencer v. Annucci, 179 A.D.3d 1372, 1373, 117 N.Y.S.3d 745 [2020] ; Matter of Tavarez v. Annucci, 134 A.D.3d 1374, 1375, 21 N.Y.S.3d 767 [2015] ).
Turning to petitioner's procedural claims, we are unpersuaded by petitioner's contention that the hearing was not completed in a timely manner because two extensions were allegedly not obtained until the day after the previous extension expired. "The regulatory time requirements are directory, not mandatory, and petitioner has not demonstrated that he was prejudiced by the short delay in obtaining the extension" ( Matter of Everett v. Venettozzi, 170 A.D.3d 1408, 1409, 96 N.Y.S.3d 703 [2019] [citations omitted]; see Matter of Lopez v. Annucci, 171 A.D.3d 1326, 1327, 97 N.Y.S.3d 803 [2019] ; Matter of Shearer v. Annucci, 155 A.D.3d 1277, 1278, 65 N.Y.S.3d 249 [2017] ). Contrary to petitioner's additional contention, there was nothing inconsistent about finding him not guilty of possessing an altered item but guilty of the remaining charges (see generally Matter of Patterson v Senkowski, 203 A.D.2d 840, 840, 611 N.Y.S.2d 349 [1994] ). 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., Clark, Aarons and Pritzker, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.