Opinion
321 TP 19-00515
08-20-2020
In the Matter of Sarah CUSHMAN, Petitioner, v. D. VENETTOZZI, Director of Special Housing/inmate Disciplinary Program, S. Squires, Superintendent of Albion Correctional Facility, M. Simmons, Albion Correctional Facility's Former Deputy Superintendent of Security, R. Matias Roberts, Lieutenant At Albion Correctional Facility, and D. Mack, Correctional Officer At Albion Correctional Facility, Respondents.
SARAH CUSHMAN, PETITIONER PRO SE. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF COUNSEL), FOR RESPONDENTS.
SARAH CUSHMAN, PETITIONER PRO SE.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF COUNSEL), FOR RESPONDENTS.
PRESENT: CENTRA, J.P., PERADOTTO, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Orleans County [Michael M. Mohun, A.J.], entered March 19, 2019) to review a determination of respondents. The determination found after a tier III hearing that petitioner had violated an inmate rule. It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a tier III disciplinary hearing, that she violated inmate rule 113.24 ( 7 NYCRR 270.2 [B] [14] [xiv] [drug use] ). Contrary to petitioner's contention, the testimony and evidence presented at the hearing, including the positive results of two urinalysis tests indicating the presence of buprenorphine/suboxone, constitute substantial evidence to support the determination (see Matter of Lahey v. Kelly , 71 N.Y.2d 135, 138, 524 N.Y.S.2d 30, 518 N.E.2d 924 [1987] ; Matter of Wade v. Venettozzi , 153 A.D.3d 1649, 1650, 60 N.Y.S.3d 878 [4th Dept. 2017] ; Matter of Robinson v. Herbert , 269 A.D.2d 807, 807, 703 N.Y.S.2d 423 [4th Dept. 2000] ). Petitioner's denials of the reported misbehavior raised, at most, an issue of credibility for resolution by the hearing officer (see Matter of Foster v. Coughlin , 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 [1990] ). Contrary to petitioner's contention, there is no evidence of a break in the chain of custody related to the urine sample, and the proper procedures and documents were utilized (see Robinson , 269 A.D.2d at 807, 703 N.Y.S.2d 423 ). Petitioner's request that video evidence of the testing room be shown was properly denied inasmuch as that evidence "would have been either redundant or immaterial" ( Matter of Jackson v. Annucci , 122 A.D.3d 1288, 1288, 994 N.Y.S.2d 755 [4th Dept. 2014] [internal quotation marks omitted] ). Petitioner failed to exhaust her administrative remedies with respect to her further contention that she was denied the right to call a certain officer witness, and this Court "has no discretionary power to reach [it]" ( Matter of Nelson v. Coughlin , 188 A.D.2d 1071, 1071, 591 N.Y.S.2d 670 [4th Dept. 1992], appeal dismissed 81 N.Y.2d 834, 595 N.Y.S.2d 396, 611 N.E.2d 297 [1993] ; see Matter of Polanco v. Annucci , 136 A.D.3d 1325, 1325, 24 N.Y.S.3d 566 [4th Dept. 2016] ). Finally, we reject petitioner's contention that the hearing officer was biased or that the determination flowed from the alleged bias (see Matter of Jones v. Annucci , 141 A.D.3d 1108, 1109, 33 N.Y.S.3d 807 [4th Dept. 2016] ).