Opinion
534568
06-23-2023
In the Matter of Rodney PIERRE, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Rodney Pierre, Utica, petitioner pro se. Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Rodney Pierre, Utica, petitioner pro se.
Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Before: Clark, J.P., Aarons, Pritzker, Reynolds Fitzgerald and Ceresia, 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 respondent finding petitioner guilty of violating a prison disciplinary rule.
Petitioner was charged in a misbehavior report with possessing a weapon. The weapon, consisting of a sock weighted at the toe end and tied off at the other end, was discovered among petitioner's personal property after packing up his cube. Following a tier III disciplinary hearing, petitioner was found guilty of the charge and a penalty was imposed. Petitioner's administrative appeal to challenge the determination of guilt was unsuccessful, and this CPLR article 78 proceeding ensued.
We confirm. Initially, the misbehavior report, together with the photographic evidence of the weapon and the testimony of the correction officer who discovered it, as well as the corroborating testimony of another officer, provide substantial evidence to support the finding of guilt (see Matter of Manwaring v. Rodriguez, 205 A.D.3d 1200, 1201, 165 N.Y.S.3d 920 [3d Dept. 2022] ; Matter of Nova v. Kirkpatrick, 160 A.D.3d 1326, 1326, 75 N.Y.S.3d 346 [3d Dept. 2018] ). Petitioner's denial that there was a weapon among his belongings, attacks upon the credibility of the correction officers who testified and claims that the weapon was planted in retaliation for various grievances that he had filed presented credibility issues for the Hearing Officer to resolve (see Matter of Jackson v. Annucci, 173 A.D.3d 1581, 1582, 102 N.Y.S.3d 807 [3d Dept. 2019] ; Matter of Nova v. Kirkpatrick, 160 A.D.3d at 1326–1327, 75 N.Y.S.3d 346 ; Matter of Wood v. Annucci, 158 A.D.3d 856, 857, 70 N.Y.S.3d 599 [3d Dept. 2018] ).
As to petitioner's procedural claims, we reject his contention that he was improperly denied the right to call several unnamed witnesses who were involved in a prior unrelated hearing, as their potential testimony was not shown to be relevant to the instant charge (see Matter of Moise v. Annucci, 168 A.D.3d 1337, 1338, 92 N.Y.S.3d 736 [3d Dept. 2019] ; Matter of Bonds v. Annucci, 166 A.D.3d 1250, 1251, 89 N.Y.S.3d 730 [3d Dept. 2018] ; Matter of Baez v. Venettozzi, 155 A.D.3d 1231, 1232, 64 N.Y.S.3d 735 [3d Dept. 2017] ). The Hearing Officer's "failure to provide petitioner with a written explanation for the denial of the[se] witnesses does not require annulment as the reason for the denial is expressly stated in the record" ( Matter of Spencer v. Annucci, 179 A.D.3d 1372, 1373, 117 N.Y.S.3d 745 [3d Dept. 2020] [internal quotation marks, brackets and citation omitted]; see Matter of Scott v. Annucci, 194 A.D.3d 1178, 1179, 147 N.Y.S.3d 745 [3d Dept. 2021] ). Petitioner's similar claim that the Hearing Officer improperly denied him the right to call certain witnesses who may have observed the search is unpreserved, as he failed to make such request despite having been afforded multiple opportunities to do so (see Matter of Snyder v. Annucci, 188 A.D.3d 1346, 1347, 136 N.Y.S.3d 170 [3d Dept. 2020] ; Matter of Matthews v. Annucci, 175 A.D.3d 1713, 1714, 108 N.Y.S.3d 217 [3d Dept. 2019] ). To the extent that petitioner further asserts that he was improperly denied documentary evidence, the record reveals that he failed to request these documents and, thus, his claim is likewise unpreserved for our review (see Matter of Estrada v. Annucci, 199 A.D.3d 1145, 1146, 156 N.Y.S.3d 576 [3d Dept. 2021] ; Matter of Davis v. Annucci, 140 A.D.3d 1432, 1433, 36 N.Y.S.3d 896 [3d Dept. 2016], appeal dismissed 28 N.Y.3d 1109, 45 N.Y.S.3d 352, 68 N.E.3d 77 [2016] ).
Finally, we are unpersuaded by petitioner's contention that the Hearing Officer should have recused himself, as the record reflects that he did not witness, participate in or investigate the subject incident (see 7 NYCRR 254.1 ). Contrary to petitioner's assertions, the Hearing Officer's fulfillment of his administrative responsibilities with regard to certain of petitioner's filed grievances or unrelated disciplinary matters did not require his disqualification (see Matter of Ramos v. Venettozzi, 131 A.D.3d 1309, 1310, 16 N.Y.S.3d 354 [3d Dept. 2015], lv denied 26 N.Y.3d 913, 2015 WL 7433122 [2015] ; Matter of Rogers v. Prack, 118 A.D.3d 1223, 1224, 987 N.Y.S.2d 710 [3d Dept. 2014], lv granted 24 N.Y.3d 916, 2015 WL 652132 [2015] ). Moreover, our review of the record reveals that the hearing, including the questioning of witnesses, was conducted in a fair and impartial manner and that the determination of guilt flowed from the evidence presented and not from any alleged bias on the part of the Hearing Officer (see Matter of Manwaring v. Rodriguez, 205 A.D.3d at 1201, 165 N.Y.S.3d 920 ; Matter of Randolph v. Annucci, 190 A.D.3d 1196, 1198, 140 N.Y.S.3d 624 [3d Dept. 2021] ). Petitioner's remaining contentions, to the extent that they are properly before us, have been considered and found to be lacking in merit.
Clark, J.P., Aarons, Pritzker, Reynolds Fitzgerald and Ceresia, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.