Opinion
532796
11-10-2021
In the Matter of William MCCOY, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, et al., Respondents.
William McCoy, Ogdensburg, petitioner pro se. Letitia James, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
William McCoy, Ogdensburg, petitioner pro se.
Letitia James, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
Before: Garry, P.J., Lynch, Clark, Aarons and Reynolds Fitzgerald, 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 Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.
A search of petitioner's work release cell phone locker disclosed a wallet containing numerous unauthorized items, including 12 credit and debit cards, five forms of identification, including a driver's license, a movie stub receipt from the prior month paid for with his Jcard, insurance documents and lottery tickets. Petitioner was charged in a misbehavior report with possessing unauthorized identification, possessing unauthorized valuables or property, possessing contraband and violating the rules of his temporary work release. Following a tier III disciplinary hearing, petitioner was found guilty of the charges. The determination was affirmed on administrative appeal, and petitioner commenced this CPLR article 78 proceeding challenging the determination.
The misbehavior report authored by the correction officer who found the unauthorized property together with the photographs of the confiscated items, which petitioner admitted belonged to him and explained how he had regained possession thereof, constituted substantial evidence to support the charges that he possessed, without authorization, items of contraband, valuable property and identification (see Matter of Briggs v. Lilley, 181 A.D.3d 1088, 1089, 117 N.Y.S.3d 895 [2020] ; Matter of Ballard v. Annucci, 168 A.D.3d 1319, 1320, 93 N.Y.S.3d 453 [2019] ). Petitioner's alternate claims that he was authorized to possess these items, that he did not possess them inside the facility and that the misbehavior report was retaliatory were unsupported by any evidence except his testimony, which the Hearing Officer did not credit and which, in any event, did not establish authorization to possess the items found (see Matter of Tigner v. Rodriguez, 196 A.D.3d 982, 982, 148 N.Y.S.3d 400 [2021] ; Matter of DeJesus v. Mayes, 196 A.D.3d 992, 992, 148 N.Y.S.3d 406 [2021] ). Likewise, the misbehavior report and testimony provide substantial evidence to support the finding that petitioner violated temporary release program rules by, among other conduct, possessing the unauthorized items in violation of prison institutional rules (see 7 NYCRR 270.2 [B][9][v]; 1902.1[1]; Matter of Wilson v. Bezio, 68 A.D.3d 1325, 1325, 889 N.Y.S.2d 498 [2009] ; Matter of Kitchens v. Fischer, 65 A.D.3d 1431, 1432, 885 N.Y.S.2d 436 [2009] ; Matter of Paige v. Goord, 19 A.D.3d 908, 908, 797 N.Y.S.2d 180 [2005] ; see also 7 NYCRR 1903.1 [a]).
Contrary to petitioner's claim, the record is devoid of evidence that the Hearing Officer, who was properly designated to conduct the hearing (see 7 NYCRR 253.1, 254.1 ), was biased, and the record reflects that the determination of guilt flowed from the evidence and petitioner's admissions (see Matter of Bellamy v. Noeth, 195 A.D.3d 1289, 1290, 145 N.Y.S.3d 875 [2021] ; Matter of Lewis v. State of N.Y. Dept. of Corr. & Community Supervision, 193 A.D.3d 1160, 1162, 145 N.Y.S.3d 661 [2021] ; Matter of Gonzalez v. Venettozzi, 155 A.D.3d 1149, 1150, 62 N.Y.S.3d 834 [2017], lv denied 30 N.Y.3d 913, 2018 WL 943515 [2018] ). Moreover, petitioner was not denied an employee assistant but, rather, refused to cooperate with the assistant assigned or with the Hearing Officer's attempts to identify the documents or evidence he was seeking (see 7 NYCRR 251–4.1, 251–4.2 ). Petitioner was not entitled to the employee assistant of his choice (see Matter of Ayuso v. Venettozzi, 170 A.D.3d 1407, 1408, 96 N.Y.S.3d 705 [2019] ) and waived any argument on this issue (see Matter of Anselmo v. Annucci, 173 A.D.3d 1589, 1589, 102 N.Y.S.3d 803 [2019] ). Finally, petitioner's challenge to his subsequent removal from the temporary release program, which was the subject of a separate administrative proceeding independent of this prison disciplinary proceeding (see 7 NYCRR 1904.2, 1904.4 ), is not properly before the Court (see Matter of Brown v. Goord, 290 A.D.2d 901, 902, 737 N.Y.S.2d 166 [2002] ). Although the record contains an amended petition that attempts to add these claims, he never obtained approval from Supreme Court to file that pleading, as required, and, accordingly, it is not before us (see CPLR 7804[d] ; Matter of Hendricks v. Annucci, 179 A.D.3d 1232, 1234, 116 N.Y.S.3d 443 [2020], lv denied 35 N.Y.3d 913, 2020 WL 5414847 [2020] ; see also CPLR 402 ). We have considered petitioner's remaining contentions and find that none has merit.
Garry, P.J., Lynch, Clark, Aarons and Reynolds Fitzgerald, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.