Summary
affirming against a procedural challenge a smuggling charge where prisoner was found with medication that he was supposed to have consumed earlier in the day at the medical window
Summary of this case from Williams v. ChutteyOpinion
06-16-2016
In the Matter of Marcus Anthony MICOLO, Appellant, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Marcus Anthony Micolo, Dannemora, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of counsel), for respondent.
Marcus Anthony Micolo, Dannemora, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of counsel), for respondent.
Before: PETERS, P.J., McCARTHY, ROSE, CLARK and AARONS, JJ.
Opinion Appeal from a judgment of the Supreme Court (Hard, J.), entered July 8, 2015, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.
During a random pat frisk of petitioner, he was discovered in possession of two partially crushed pills of percocet that he was supposed to have consumed earlier that day when it was given to him at the medical window. As a result, he was charged in a misbehavior report with possessing an authorized item in an unauthorized area, possessing a narcotic and smuggling. Following a tier III disciplinary hearing, petitioner was found guilty as charged. The determination was affirmed upon administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding. Supreme Court dismissed the petition and this appeal ensued.
We affirm. Although, before Supreme Court, petitioner did not have access to the certified hearing transcript because respondent inadvertently submitted it as a confidential exhibit with its answer, petitioner has now received the complete certified transcript. We discern no prejudice and, thus, any error will be disregarded (see CPLR 7804[e] ; Matter of Smith v. Quinn, 120 A.D.3d 1509, 1510, 992 N.Y.S.2d 457 [2014] ; Matter of Cliff v. Kingsley, 293 A.D.2d 954, 955, 742 N.Y.S.2d 408 [2002] ). We reject petitioner's contention that he was disciplined in violation of Correction Law § 138, as he does not allege that he has never received a copy of the rules at issue and, moreover, the record establishes that he had actual knowledge that the conduct he engaged in was prohibited (see Correction Law § 138[3], [5] ). Further, petitioner was properly removed from the hearing where, after being told to stop interjecting during a witness's testimony and warned that he would be removed, he continued to engage in disruptive and argumentative behavior (see 7 NYCRR 254.6 [a][2]; Matter of Garcia v. Prack, 128 A.D.3d 1244, 1245, 8 N.Y.S.3d 609 [2015] ). Finally, petitioner's claim that the Hearing Officer improperly denied his request for a certain witness is unpersuasive, as the record establishes that petitioner never clearly made such a request. Petitioner's remaining contentions are either unpreserved or lack merit.
ORDERED that the judgment is affirmed, without costs.