Opinion
520172
06-25-2015
In the Matter of Jose BURGOS, Petitioner, v. Albert PRACK, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Jose Burgos, Elmira, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Jose Burgos, Elmira, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: PETERS, P.J., McCARTHY, GARRY and CLARK, JJ.
Opinion 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 the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating a prison disciplinary rule.
While petitioner was confined in the special housing unit, his cell was searched and a sharpened piece of plexiglass was found in a jar of peanut butter located in a locker in the back of his cell. As a result, petitioner was charged in a misbehavior report with possessing a weapon and smuggling. Following a tier III disciplinary hearing, he was found guilty of possessing a weapon, but not guilty of smuggling. The determination was later affirmed on administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report and related documentation, together with the testimony of the correction officer who conducted the search, provide substantial evidence supporting the determination of guilt (see Matter of Morales v. Fischer, 119 A.D.3d 1298, 1299, 989 N.Y.S.2d 921 [2014] ; Matter of Alache v. Fischer, 91 A.D.3d 1240, 1241, 937 N.Y.S.2d 458 [2012] ). Although petitioner claims that he was improperly denied the opportunity to observe the search in violation of Department of Corrections and Community Supervision Directive No. 4910, this directive is inapplicable given that he had previously been removed from his cell and placed in administrative segregation due to a separate incident (see Matter of Johnson v. Fischer, 109 A.D.3d 1070, 1071, 971 N.Y.S.2d 590 [2013] ; Matter of Griffin v. Selsky, 60 A.D.3d 1247, 1248, 878 N.Y.S.2d 204 [2009] ). Furthermore, we find no error in the Hearing Officer's denial of petitioner's request for the videotape depicting his removal from his cell because such evidence was irrelevant (see Matter of Byrd v. Fischer, 117 A.D.3d 1263, 1263, 984 N.Y.S.2d 896 [2014] ; Matter of Cowart v. Senkowski, 263 A.D.2d 730, 731, 694 N.Y.S.2d 503 [1999] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.