Opinion
09-22-2016
In the Matter of Conrad MARHONE, Petitioner, v. John SCHUCK, as Correction Officer at Attica Correctional Facility, Respondent.
Conrad Marhone, Pine City, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Conrad Marhone, Pine City, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: PETERS, P.J., McCARTHY, EGAN JR., LYNCH and CLARK, JJ.
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 finding petitioner guilty of violating a prison disciplinary rule.
During a search of petitioner's prison cell, a correction officer found a rolled-up magazine on a coat hook containing a concealed plastic rod sharpened to a point on one end with a rubber grip on the other end. As a result, petitioner was charged in a misbehavior report with possessing a weapon. Following a tier III disciplinary hearing, petitioner was found guilty of the charge, and the determination was upheld upon administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, related documentation, confidential testimony and the hearing testimony provide substantial evidence to support the determination of guilt (see Matter of Baysden v. Annucci, 140 A.D.3d 1519, 1519, 35 N.Y.S.3d 517 [2016] ; Matter of Diaz v. Prack, 127 A.D.3d 1489, 1490, 6 N.Y.S.3d 327 [2015] ). Although petitioner denied possessing the weapon, which he contends had been planted in his cell in retaliation for a previous incident in which he had been exonerated, such claim presented a credibility issue for the Hearing Officer to resolve (see Matter of Tavarez v. Annucci, 134 A.D.3d 1374, 1375, 21 N.Y.S.3d 767 [2015] ). Similarly, any minor discrepancy between the misbehavior report and the contraband receipt presented a credibility issue for the Hearing Officer to resolve (see Matter of Lane v. Annucci, 127 A.D.3d 1492, 1496 [2015] ; Matter of Bilal v. Fischer, 92 A.D.3d 1046, 1047, 938 N.Y.S.2d 363 [2012] ), and petitioner has not demonstrated any prejudice arising from not being provided with a copy of the contraband receipt at the hearing (see Matter of Wilkerson v. Annucci, 137 A.D.3d 1444, 1446, 28 N.Y.S.3d 140 [2016] ). Inasmuch as the weapon was discovered in petitioner's cell, we also reject petitioner's contention that the Hearing Officer inadequately assessed the credibility of the confidential information that had led to the search of his cell (see Matter of Shufelt v. Annucci, 138 A.D.3d 1336, 1337–1338, 31 N.Y.S.3d 243 [2016] ; Matter of Douglas v. Fischer, 126 A.D.3d 1244, 1245, 3 N.Y.S.3d 654 [2015], lv denied 26 N.Y.3d 904, 2015 WL 5254842 [2015] ).
Contrary to petitioner's contention, we find no abuse of discretion in Supreme Court's denial of his motion to consolidate this proceeding with a separate proceeding challenging an unrelated disciplinary determination, given petitioner's failure to establish that the two proceedings involve “a common question of law or fact” (CPLR 602[a] ; compare Matter of Giangualano [Birnbaum], 114 A.D.3d 1233, 1234, 981 N.Y.S.2d 494 [2014] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.