Opinion
533642
03-10-2022
In the Matter of Alex RIVERA, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Alex Rivera, Woodbourne, petitioner pro se. Letitia James, Attorney General, Albany (Dustin J. Brockner of counsel), for respondent.
Alex Rivera, Woodbourne, petitioner pro se.
Letitia James, Attorney General, Albany (Dustin J. Brockner of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Clark, Aarons 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 respondent finding petitioner guilty of violating certain prison disciplinary rules.
During the course of a confidential investigation, an investigator with the Department of Corrections and Community Supervision's Office of Special Investigations listened to the recordings of three telephone calls between petitioner, an incarcerated individual, and his brother. According to the investigator, the calls indicated that petitioner was conspiring to smuggle synthetic marihuana into the correctional facility in which he was incarcerated. As a result, petitioner was charged in a misbehavior report with smuggling and conspiring to possess drugs. Following a tier III disciplinary hearing, petitioner was found guilty as charged. This determination was affirmed upon administrative appeal, and this CPLR article 78 proceeding ensued.
We confirm. Contrary to petitioner's contention, the misbehavior report, the testimony of the investigator who authored it and the recorded telephone conversations demonstrating petitioner's solicitation of synthetic marihuana using coded language provide substantial evidence supporting the determination of guilt (see Matter of Harrison v. Fischer, 104 A.D.3d 1032, 1032, 960 N.Y.S.2d 749 [2013] ; Matter of Randall v. Fischer, 94 A.D.3d 1302, 1302, 942 N.Y.S.2d 678 [2012] ). Although petitioner denied soliciting his brother to smuggle drugs into the facility, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Bachiller v. Annucci, 166 A.D.3d 1186, 1187, 89 N.Y.S.3d 335 [2018] ; Matter of Holmes v. Annucci, 153 A.D.3d 1004, 1005, 56 N.Y.S.3d 900 [2017] ). Petitioner's argument that he never possessed synthetic marihuana or had it smuggled into the facility is unavailing, as the violation of the applicable rules "occurred when petitioner conspired to introduce such substance into the facility" ( Matter of Liggan v. Annucci, 171 A.D.3d 1325, 1326, 97 N.Y.S.3d 805 [2019] [internal quotation marks, brackets and citations omitted]; see Matter of Adams v. Annucci, 160 A.D.3d 1331, 1332, 75 N.Y.S.3d 343 [2018] ). We reject petitioner's contention that the Hearing Officer improperly relied on confidential information in finding him guilty. Although the confidential information led to the investigation of petitioner, the determination of guilt resulted from the recorded telephone conversations made in the course of the investigation, rather than any confidential information (see Matter of Douglas v. Fischer, 126 A.D.3d 1244, 1245, 3 N.Y.S.3d 654 [2015], lv denied 26 N.Y.3d 904, 2015 WL 5254842 [2015] ; Matter of Mullady v. Bezio, 87 A.D.3d 765, 766, 928 N.Y.S.2d 149 [2011] ). Finally, although the first page of the hearing disposition form incorrectly indicates that the hearing ended on July 27, 2020, rather than the correct ending date of August 7, 2020, we are unpersuaded by petitioner's contention that the Hearing Officer had predetermined his guilt. The remainder of the form, including the statement of evidence relied on by the Hearing Officer in rendering her disposition, contains the proper end date of the hearing and references evidence presented over all three days of the hearing. Accordingly, and in light of the lack of any indication in the record that the Hearing Officer had predetermined petitioner's guilt or that the determination of guilt flowed from any bias, we find the clerical error on the form was harmless and that petitioner was therefore not denied a fair hearing (see Matter of Walton v. Annucci, 181 A.D.3d 1085, 1087, 121 N.Y.S.3d 386 [2020] ; Matter of Campos v. New York State Dept. of Corr. & Community Supervision, 159 A.D.3d 1254, 1255, 70 N.Y.S.3d 413 [2018] ). Petitioner's remaining claims have been reviewed and found to be without merit.
Garry, P.J., Egan Jr., Clark, Aarons and Colangelo, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.