Opinion
06-30-2016
In the Matter of Thomas PATTERSON, Petitioner, v. Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Thomas Patterson, Dannemora, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Thomas Patterson, Dannemora, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, EGAN JR., ROSE and CLARK, JJ.
LAHTINEN, J. 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.
During a search of petitioner's cell, a correction officer found a razor blade with a masking tape handle secreted in the waistband of petitioner's state-issued pants. As a result, he was charged in a misbehavior report with possessing a weapon and altering state property. During the same search, another correction officer recovered personal letters containing gang-related references, and petitioner was charged in a second misbehavior report with possessing gang-related material. Following a tier III disciplinary hearing, he was found guilty of the charges contained in both reports. The determination was later affirmed on administrative appeal, and this CPLR article 78 proceeding ensued.
We confirm. Initially, insofar as petitioner challenges that part of the determination finding him guilty of possessing gang-related material, we note that the second misbehavior report, confiscated documents and testimony of the author of the report, who was trained in identifying gang-related material, provide substantial evidence supporting it (see Matter of Gittens v. Fischer, 100 A.D.3d 1121, 1121–1122, 952 N.Y.S.2d 917 [2012] ; Matter of Smith v. Prack, 98 A.D.3d 780, 781, 949 N.Y.S.2d 806 [2012] ). Contrary to petitioner's claim, the hearing was not untimely as it was commenced and completed within the time periods provided in the valid extensions that were obtained by the Hearing Officer (see Matter of Jay v. Fischer, 120 A.D.3d 1466, 1466, 991 N.Y.S.2d 908 [2014], lv. denied 24 N.Y.3d 909, 2014 WL 6609030 [2014] ; Matter of Gren v. Annucci, 119 A.D.3d 1307, 1308, 991 N.Y.S.2d 169 [2014] ). In addition, we find no merit to petitioner's claim that he was improperly denied the videotape of the cell search as it was not available (see Matter of Blocker v. Fischer, 107 A.D.3d 1285, 1286, 967 N.Y.S.2d 525 [2013] ; Matter of Barclay v. Knowles, 79 A.D.3d 1550, 1550–1551, 914 N.Y.S.2d 347 [2010] ). Furthermore, any deficiencies in the adequacy of the employee assistance provided to petitioner were remedied by the Hearing Officer, and petitioner has not demonstrated that he was prejudiced (see Matter of Guillory v. Annucci, 125 A.D.3d 1024, 1025, 1 N.Y.S.3d 581 [2015], lv. denied 25 N.Y.3d 905, 2015 WL 2105654 [2015] ; Matter of Castillo v. Fischer, 120 A.D.3d 1493, 992 N.Y.S.2d 449 [2014] ). Lastly, the record does not disclose that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Williams v. Prack, 130 A.D.3d 1123, 1124, 11 N.Y.S.3d 750 [2015] ; Matter of Pilet v. Annucci, 128 A.D.3d 1198, 1199, 7 N.Y.S.3d 734 [2015] ). We have considered petitioner's remaining contentions and find that they are either unpreserved for our review or lacking in merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
PETERS, P.J., EGAN JR., ROSE and CLARK, JJ., concur.