Opinion
2021-03894
06-17-2021
In the Matter of James Bellamy, Petitioner, v. Joseph Noeth, as Superintendent of Attica Correctional Facility, Respondent.
James Bellamy, Attica, petitioner pro se. Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Calendar Date:May 7, 2021
James Bellamy, Attica, petitioner pro se.
Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Lynch, Pritzker and Colangelo, JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Columbia County) to review a determination of respondent finding petitioner guilty of violating a prison disciplinary rule.
During a search of petitioner's cell, a correction officer found and confiscated a handwritten letter suspected to be gang-related material. Upon subsequent submission and review of that letter, the letter was determined to be gang-related material. As a result, petitioner was charged in a misbehavior report with possessing gang-related material. Following a tier II disciplinary hearing, petitioner was found guilty as charged. The determination was affirmed on administrative appeal, and petitioner commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, related documentation and letter that was confiscated, together with the hearing testimony of, among others, the correction officer who authored the report and was trained in identifying gang-related materials, provide substantial evidence supporting the determination of guilt (see Matter of Quiroz v Venettozzi, 161 A.D.3d 1475, 1475 [2018]; Matter of Gonzalez v Venettozzi, 155 A.D.3d 1149, 1149 [2017], lv denied 30 N.Y.3d 913 [2018]; Matter of Gonzalez v Annucci, 149 A.D.3d 1455, 1455 [2017]). Although petitioner maintains that the at-issue reference in the letter was slang and not gang-related, the correction officer explained that the term was used to identify gang members, which presented a credibility issue for the Hearing Officer to resolve (see Matter of Quiroz v Venettozzi, 161 A.D.3d at 1475; Matter of Gonzalez v Annucci, 149 A.D.3d at 1455; Matter of Harvey v Bradt, 81 A.D.3d 1003, 1003 [2011]).
We reject petitioner's procedural contention that the misspelling of his last name in the misbehavior report requires annulment of the determination. The misbehavior report provided sufficient information to place him on notice of the charge and afford him an opportunity to prepare a defense (see 7 NYCRR 251-3.1 [c]; Matter of Quiroz v Venettozzi, 161 A.D.3d at 1476; Matter of Williams v Fischer, 93 A.D.3d 1051, 1052 [2012]), and, in any event, petitioner has not demonstrated that he was prejudiced by the typographical error in the report (see Matter of Grant v Prack, 86 A.D.3d 885, 886 [2011]; Matter of Alston v Great Meadow Correctional Facility, 252 A.D.2d 697, 698 [1998]). To the extent that petitioner asserts that the Hearing Officer was biased, the record establishes that the determination of guilt flowed from the evidence presented and not from any alleged bias (see Matter of Malave v Bedard, 153 A.D.3d 1536, 1536 [2017]; Matter of Bonnemere v Annucci, 153 A.D.3d 983, 984 [2017]). To the extent that petitioner's remaining contentions are properly before us, they have been examined and found to be without merit.
Garry, P.J., Egan Jr., Lynch, Pritzker and Colangelo, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.