Opinion
526852
12-06-2018
In the Matter of Shaun ROGERS, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Shaun Rogers, Napanoch, petitioner pro se. Barbara D. Underwood, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Shaun Rogers, Napanoch, petitioner pro se.
Barbara D. Underwood, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: Garry, P.J., McCarthy, Egan Jr., Lynch and Clark, 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.
Petitioner was charged in a misbehavior report with possessing contraband and possessing drugs after a search of his cell revealed a green leafy substance that tested positive for marihuana. Following a tier III disciplinary hearing, petitioner was found guilty of both charges and that determination was affirmed upon administrative appeal. This CPLR article 78 proceeding ensued.
Contrary to petitioner's contention, the misbehavior report adequately set forth the particulars with regard to the search of his cell and discovery of the marihuana in order to give petitioner notice of the charges and prepare a defense (see Matter of Ortiz v. Prack , 134 A.D.3d 1336, 1337, 21 N.Y.S.3d 497 [2015] ). Further, the misbehavior report, positive test results and testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Mitchell v. Department of Corr. & Community Supervision , 147 A.D.3d 1135, 1136, 45 N.Y.S.3d 820 [2017] ; Matter of McMaster v. Annucci , 138 A.D.3d 1289, 1289, 31 N.Y.S.3d 239 [2016], lv denied 28 N.Y.3d 902, 2016 WL 4742537 [2016] ). To the extent that petitioner asserts that he was denied the opportunity to observe the cell search, the record contains conflicting evidence as to whether petitioner was permitted to observe the search and, thus, presented a credibility issue for the Hearing Officer to resolve (see Matter of Alston v. Annucci , 153 A.D.3d 981, 982, 59 N.Y.S.3d 850 [2017] ; Matter of Giano v. Prack , 138 A.D.3d 1285, 1285–1286, 31 N.Y.S.3d 233 [2016], lv denied 27 N.Y.3d 912, 2016 WL 4533480 [2016] ).
Garry, P.J., McCarthy, Egan Jr., Lynch and Clark, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.