Opinion
06-22-2017
In the Matter of Orlando PILETAS, Petitioner, v. Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Orlando Piletas, Moravia, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondent.
Orlando Piletas, Moravia, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondent.
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.
After a sample of petitioner's urine twice tested positive for the presence of opiates, he was charged in a misbehavior report with using a controlled substance. This prompted correction officials to conduct a search of petitioner's cell, where five pills of unknown origin were found on top of his locker. When asked to identify them, petitioner stated that they were ibuprofen, but a facility nurse identified them as a prescription medication that had not been prescribed to petitioner. Consequently, petitioner was charged in a second misbehavior report with possessing unauthorized medication, possessing a controlled substance, making a false statement and smuggling. Following a combined tier III disciplinary hearing, he was found guilty of all of the charges. Thereafter, the penalty was modified and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
Initially, respondent concedes and we agree that the part of the determination finding petitioner guilty of possessing a controlled substance and possessing unauthorized medication is not supported by substantial evidence given that the chain of custody of the confiscated pills was never established (see 7 NYCRR 1010.4 [b] ) and the documentation requirements necessary to support these charges (see 7 NYCRR 1010.5 ) were not satisfied (see Matter of Sanabria v. Annucci, 123 A.D.3d 1328, 1329, 996 N.Y.S.2d 800 [2014] ). Such requirements, however, are not applicable to the charge of smuggling (see 7 NYCRR 270.2 [B][15][i]; Matter of Quartieri v. New York State Dept. of Correctional Servs., 70 A.D.3d 1071, 1072, 896 N.Y.S.2d 485 [2010] ; Matter of James v. Fischer, 57 A.D.3d 1064, 1065, 867 N.Y.S.2d 710 [2008] ), and we find that they are also not applicable to the charge of making a false statement (see 7 NYCRR 270.2 [B][8][iii] ). As for that part of the determination finding petitioner guilty of these charges, we conclude that it is supported by substantial evidence consisting of the misbehavior report, related documentation, admissions made by petitioner during the hearing and the testimony of the facility nurse (see Matter of Sanchez v. Fischer, 106 A.D.3d 1361, 1361, 965 N.Y.S.2d 397 [2013] ; Matter of Lopez v. Fischer, 91 A.D.3d 1223, 1224, 937 N.Y.S.2d 451 [2012] ). As annulment of a portion of the determination is warranted and given that a loss of good time was imposed, the matter must be remitted to the Commissioner of Corrections and Community Supervision for a redetermination of the penalty on the remaining charges (see Matter of Davis v. Annucci, 140 A.D.3d 1432, 1433, 36 N.Y.S.3d 896 [2016], appeal dismissed 28 N.Y.3d 1109, 45 N.Y.S.3d 352, 68 N.E.3d 77 [2016] ; Matter of Tafari v. Annucci, 137 A.D.3d 1356, 1357, 25 N.Y.S.3d 912 [2016] ). Furthermore, notwithstanding the gap in the transcript indicating that a portion of the hearing was not electronically transcribed, we find that meaningful review of the limited arguments raised by petitioner is not precluded (see Matter of Afrika v. Blackman, 149 A.D.3d 1369, 1370, 53 N.Y.S.3d 221 [2017] ; Matter of Legeros v. Annucci, 147 A.D.3d 1175, 1176, 46 N.Y.S.3d 447 [2017] ). Petitioner's remaining contentions have been considered and are lacking in merit.
Petitioner does not challenge the sufficiency of the evidence supporting that part of the determination finding him guilty of using a controlled substance as charged in the first misbehavior report.
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ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of possessing a controlled substance and possessing unauthorized medication, and imposed a penalty; petition granted to that extent, the Commissioner of Corrections and Community Supervision is directed to expunge all references to these charges from petitioner's institutional record and matter remitted to the Commissioner of Corrections and Community Supervision for a redetermination of the penalty on the remaining violations; and, as so modified, confirmed.
McCARTHY, J.P., EGAN JR., ROSE, DEVINE and AARONS, JJ., concur.