Opinion
525630
04-26-2018
In the Matter of Ricardo ROSADO, Petitioner, v. Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Ricardo Rosado, Alden, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of counsel), for respondent.
Ricardo Rosado, Alden, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Clark, Aarons and Pritzker, JJ.
MEMORANDUM AND JUDGMENTProceeding 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.
Petitioner, a prison inmate, received a misbehavior report charging him with committing an unhygienic act, engaging in violent conduct, participating in a demonstration and creating a disturbance based upon allegations that he threw his food tray, water and other items out of his cell at the same time as inmates in neighboring cells. Following a tier III disciplinary hearing, petitioner was found guilty of all charges. Upon administrative review, the finding of guilt with respect to the charge of engaging in violent conduct was reversed and petitioner's penalty was reduced. Thereafter, he commenced this CPLR article 78 proceeding.
We confirm. Initially, we note that, because he failed to raise the issue in his brief, petitioner has abandoned any claim with respect to the charge of creating a disturbance (see Matter of Rodriguez v. Venettozzi, 156 A.D.3d 1029, 1030, 66 N.Y.S.3d 555 [2017] ; Matter of Medina v. Five Points Corr. Facility, 153 A.D.3d 1471, 1471–1472, 61 N.Y.S.3d 381 [2017] ). Turning to the remaining charges, the misbehavior report, video of the incident and testimony of the correction officer who viewed the video and authored the report provide substantial evidence to support the finding of guilt (see Matter of Cordero v. Rodriguez, 156 A.D.3d 979, 979, 64 N.Y.S.3d 616 [2017] ; Matter of Kalwasinski v. Venettozzi, 152 A.D.3d 853, 853, 54 N.Y.S.3d 888 [2017] ). Although petitioner argues that his actions did not constitute the commission of an unhygienic act, that charge includes "propelling ... water[ ] or food" (see 7 NYCRR 270.2 [B][19][iv] ). Similarly, while petitioner contends that a demonstration did not take place, such could be inferred from the inmates having acted in concert (see e.g. Matter of Washington v. Lee, 156 A.D.3d 1033, 1034, 64 N.Y.S.3d 612 [2017] ; Matter of Sunkes v. Russo, 153 A.D.3d 994, 995, 56 N.Y.S.3d 915 [2017] ). Lastly, the misbehavior report was sufficiently detailed to provide petitioner with notice of the charges to enable him to prepare a defense (see Matter of Washington v. Lee, 156 A.D.3d at 1034, 64 N.Y.S.3d 612 ; Matter of Heard v. Annucci, 155 A.D.3d 1166, 1167, 62 N.Y.S.3d 819 [2017] ). Petitioner's remaining claims have been examined and found to be lacking in merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Egan Jr., J.P., Lynch, Clark, Aarons and Pritzker, JJ., concur.