Opinion
527251
09-12-2019
In the Matter of Eric PARTAK, Petitioner, v. Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs
Eric Partak, Malone, petitioner pro se. Letitia James, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Eric Partak, Malone, petitioner pro se.
Letitia James, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Devine, Aarons and Rumsey, JJ.
MEMORANDUM AND JUDGMENT
Egan Jr., J.P. 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 certain prison disciplinary rules.
Petitioner was charged in three misbehavior reports with refusing a direct order, refusing a search or frisk, violating visitation procedures, possession of contraband, smuggling of contraband and using an intoxicant. According to the reports, while a correction officer was conducting a strip frisk of petitioner after he left the visit room, the officer spotted an item protruding from petitioner's anal cavity. When questioned, petitioner refused to comply with certain directions and with the strip frisk, and he was thereafter evaluated by medical personnel and placed on a contraband watch for observation. Approximately nine hours later, defendant was believed to be under the influence of an intoxicant. At a tier III disciplinary hearing, petitioner pleaded guilty to possession of contraband and not guilty to the remaining charges. Following the hearing, petitioner was found guilty of all charges and a penalty was imposed. The determination was affirmed on administrative appeal, and this CPLR article 78 proceeding ensued.
Initially, because petitioner pleaded guilty to possession of contraband, he is precluded from challenging the sufficiency of the evidence supporting that part of the determination finding him guilty of that charge (see Matter of Kelly v. Rodriguez, 166 A.D.3d 1190, 1191, 87 N.Y.S.3d 717 [2018] ; Matter of LaGrave v. Venettozzi, 157 A.D.3d 1184, 1184, 70 N.Y.S.3d 587 [2018] ). As for the remaining charges, the three misbehavior reports and the hearing testimony of the officer who performed the strip frisk, the officer who responded to petitioner's special housing unit for a medical emergency and a facility nurse provide substantial evidence to support the determination of guilt (see Matter of Gomez v. Venettozzi, 170 A.D.3d 1414, 1415, 94 N.Y.S.3d 891 [2019] ; Matter of Ayuso v. Venettozzi, 170 A.D.3d 1407, 1407, 96 N.Y.S.3d 705 [2019] ; Matter of Poliandro v. Venettozzi, 160 A.D.3d 1329, 1329, 75 N.Y.S.3d 344 [2018] ; Matter of Vargus v. Annucci, 147 A.D.3d 1124, 1125, 45 N.Y.S.3d 811 [2017] ). Any challenges to the narrative of the incident contained in the misbehavior reports or the veracity of the adverse hearing testimony presented credibility issues for the Hearing Officer to resolve (see Matter of Ocasio v. Bullis, 162 A.D.3d 1424, 1425, 80 N.Y.S.3d 505 [2018] ).
Turning to the procedural challenges, we are unpersuaded by petitioner's contention that the hearing was not completed in a timely manner. The record reflects that the Hearing Officer first adjourned the hearing to obtain additional documentation requested by petitioner and then permitted a second brief adjournment to provide petitioner an adequate opportunity to review as much. The Hearing Officer obtained valid extensions for two subsequent adjournments due to witness unavailability and ultimately completed the hearing within the time frame provided for in the final extension (see 7 NYCRR 251–5.1 [b]; Matter of Ayuso v. Venettozzi, 170 A.D.3d at 1408, 96 N.Y.S.3d 705 ; Matter of Caldwell v. Venettozzi, 166 A.D.3d 1184, 1185, 89 N.Y.S.3d 729 [2018] ). In any event, the time requirements of 7 NYCRR 251–5.1 are directory, not mandatory, and petitioner has not demonstrated that he was prejudiced by the short delay in completing the hearing (see Matter of Everett v. Venettozzi, 170 A.D.3d 1408, 1409, 96 N.Y.S.3d 703 [2019] ).
We also reject petitioner's claim that he was improperly denied the results of his urinalysis testing. Initially, the record does not establish that such testing actually occurred, and, in any event, the intoxicant charge was based on petitioner's observable behavior at the time of that report, not any scientific testing (see Matter of Simmons v. Venettozzi, 153 A.D.3d 1016, 1016, 56 N.Y.S.3d 908 [2017] ; Matter of Heyliger v. Kirkpatrick, 153 A.D.3d 989, 990, 56 N.Y.S.3d 910 [2017] ). We also conclude that the Hearing Officer properly determined that the testimony of the nurse who evaluated petitioner hours before the intoxicant set in and the testimony of the officer assigned to petitioner's contraband watch were irrelevant to the charges (see Matter of Everett v. Venettozzi, 170 A.D.3d at 1409, 96 N.Y.S.3d 703 ; Matter of Jones v. Annucci, 166 A.D.3d 1174, 1176, 87 N.Y.S.3d 723 [2018] ).
Contrary to petitioner's claim, there is nothing in the record to suggest that the Hearing Officer failed to electronically record the entire hearing so as to preclude meaningful appellate review (see 7 NYCRR 254.6 [a][2]; Matter of Liggan v. Annucci, 171 A.D.3d 1325, 1326, 97 N.Y.S.3d 805 [2019] ; Matter of Boyd v. Prack, 136 A.D.3d 1136, 1137, 24 N.Y.S.3d 457 [2016] ). Lastly, the record does not disclose that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Ayuso v. Venettozzi, 170 A.D.3d at 1408, 96 N.Y.S.3d 705 ; Matter of Swinton v. Venettozzi, 164 A.D.3d 1584, 1585, 81 N.Y.S.3d 918 [2018] ). Petitioner's remaining claims, to the extent not specifically addressed herein, have been examined and found to be lacking in merit.
Lynch, Devine, Aarons and Rumsey, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.