Opinion
530605
11-05-2020
In the Matter of James MOSES, Petitioner, v. Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
James Moses, Coxsackie, petitioner pro se. Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
James Moses, Coxsackie, petitioner pro se.
Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Aarons, Pritzker and Colangelo, 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 the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating a prison disciplinary rule.
Petitioner was charged in a misbehavior report with possessing drugs after a correction officer discovered a bucket under petitioner's bed with 36 various colored balloons containing a brown green leafy substance, which later tested positive for synthetic cannabinoids. Following a hearing, petitioner was found guilty of possessing drugs. That determination was upheld upon administrative appeal with a modified penalty, and this CPLR article 78 proceeding ensued.
We confirm. Initially, the misbehavior report, the positive NARK II test results and related documentation, together with the hearing testimony and confidential testimony, provide substantial evidence to support the determination of guilt (see Matter of Favreau v. Venettozzi, 173 A.D.3d 1587, 1588, 102 N.Y.S.3d 805 [2019] ; Matter of Moise v. Annucci, 168 A.D.3d 1337, 1338, 92 N.Y.S.3d 736 [2019] ; Matter of Duchnowski v. Annucci, 168 A.D.3d 1302, 1302, 92 N.Y.S.3d 460 [2019] ). Petitioner's protestations of innocence, and the testimony of his inmate witness who claimed to have been the owner of the drugs, raised credibility issues for the Hearing Officer to resolve (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] ).
We also reject petitioner's contention that the Hearing Officer was not properly authorized to conduct the hearing and was therefore not impartial. The record does not support petitioner's claim that the Hearing Officer was present during the search of his cell or directly involved in the incident (see 7 NYCRR 254.1 ; Matter of Barnes v. Lee, 153 A.D.3d 1543, 1543, 60 N.Y.S.3d 708 [2017] ; Matter of Harrison v. Venettozzi, 150 A.D.3d 1508, 1510, 55 N.Y.S.3d 498 [2017], lv denied 30 N.Y.3d 901, 2017 WL 4542713 [2017] ; Matter of O'Neal v. Coughlin, 162 A.D.2d 826, 827, 558 N.Y.S.2d 644 [1990] ). Further, we find no evidence that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Ortiz v. Venettozzi, 158 A.D.3d 865, 865, 70 N.Y.S.3d 598 [2018] ). To the extent that petitioner's remaining contentions are properly before us, they have been reviewed and found to be without merit.
Egan Jr., J.P., Lynch, Aarons, Pritzker and Colangelo, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.