Opinion
521517.
04-14-2016
In the Matter of Kenneth McMASTER, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Kenneth McMaster, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Kenneth McMaster, Malone, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: PETERS, P.J., McCARTHY, ROSE 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 respondent finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with possessing excess stamps, gang-related material, facility employees' personal information and contraband after a search of his cell revealed 247 postage stamps, matches with strikers, pages torn from a telephone book, sheets of paper containing other inmates' personal information, an address book containing the phone number and home address of a facility employee, handwritten material containing gang-related references and two packages containing a green leafy substance. When the green leafy substance later tested positive for marihuana, he was charged in a second misbehavior report with possessing marihuana. Following a tier III disciplinary hearing, he was found guilty of the charges and this determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior reports and related documentation, including the positive test results and the hearing testimony of the correction officers familiar with the incident, provide substantial evidence supporting the determination of guilt (see Matter of Williams v. Annucci, 120 A.D.3d 1479, 1480, 991 N.Y.S.2d 918 [2014], lv. denied 24 N.Y.3d 911, 2014 WL 7152478 [2014] ; Matter of Curry v. Fischer, 113 A.D.3d 981, 982, 980 N.Y.S.2d 165 [2014] ). Petitioner's claim that the misbehavior reports were written in retaliation for prior grievances that he had filed presented a credibility issue for the Hearing Officer to resolve (see Matter of Marino v. Martuscello, 131 A.D.3d 749, 750, 14 N.Y.S.3d 589 [2015], lv. denied 26 N.Y.3d 910, 2015 WL 6457385 [2015] ; Matter of Donah v. Prack, 127 A.D.3d 1538, 1538, 6 N.Y.S.3d 332 [2015] ).
Turning to petitioner's procedural claims, we reject his contention that he was not given proper notice of the second misbehavior report. The record reflects that when petitioner advised the Hearing Officer that he had not received a copy of that report, the Hearing Officer provided him with a copy and the hearing was adjourned for two weeks in order to give him time to prepare a defense (see Matter of Boggs v. Martuscello, 84 A.D.3d 1667, 1668, 923 N.Y.S.2d 369 [2011] ). Although petitioner also contends that he was denied adequate employee assistance, the Hearing Officer remedied any deficiencies and petitioner has not demonstrated that he was prejudiced (see Matter of Pooler v. Fischer, 107 A.D.3d 1256, 1257, 969 N.Y.S.2d 564 [2013], lv. denied 22 N.Y.3d 855, 2013 WL 6009632 [2013] ; Matter of Procopio v. Fischer, 100 A.D.3d 1292, 1293, 954 N.Y.S.2d 696 [2012] ). Finally, contrary to petitioner's contention, he was not improperly denied the right to call certain inmate witnesses. Inasmuch as his requested inmate witnesses had not previously agreed to testify, the Hearing Officer's inquiry into the witnesses' refusals through the correction officers who obtained the refusals adequately protected petitioner's right to call witnesses (see Matter of Vansteenburg v. State of N.Y. Dept. of Corrs. & Community Supervision, 128 A.D.3d 1295, 1296, 10 N.Y.S.3d 659 [2015] ; Matter of Hill v. Selsky, 19 A.D.3d 64, 66, 795 N.Y.S.2d 794 [2005] ). Petitioner's remaining claims, including that the hearing was not timely commenced, have been considered and found to be without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.