Opinion
No. CV-23-1934
11-27-2024
In the Matter of Terell Viera, Petitioner, v. Anthony J. Annucci, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Terell Viera, Malone, petitioner pro se. Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Calendar Date: November 8, 2024
Terell Viera, Malone, petitioner pro se.
Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Before: Garry, P.J., Pritzker, Lynch, Ceresia and Mackey, JJ.
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, an incarcerated individual, was subjected to a pat frisk and ensuing authorized search, during which he admitted to possessing K-2 and surrendered a bag containing seven paper bindles and a cellophane bag of brown leafy substance as well as seven pieces of orange film positively identified by medical staff to be buprenorphine. As a result of this incident, petitioner was charged in a misbehavior report with possessing drugs, drug distribution and possessing contraband. Following a tier III disciplinary hearing, a Hearing Officer found petitioner not guilty of distributing drugs and guilty of possessing contraband and possessing drugs. The determination was affirmed on administrative review, and this CPLR article 78 proceeding ensued.
We confirm. "Initially, because petitioner pleaded guilty to the charge of possessing contraband alleged in the... misbehavior report, he is precluded from challenging the sufficiency of the evidence supporting that part of the determination finding him guilty of that charge" (Matter of Mena v Gutwein, 216 A.D.3d 1384, 1385 [3d Dept 2023] [citation omitted], lv denied 40 N.Y.3d 906 [2023]; see Matter of Miller v Rodriguez, 215 A.D.3d 1156, 1157 [3d Dept 2023]). As for the remaining charge of drug possession, the misbehavior report and related documentation, together with the hearing testimony, provide substantial evidence to support the determination of guilt (see Matter of Wiggins v Venettozzi, 203 A.D.3d 1362, 1363 [3d Dept 2022]; Matter of Robinson v Annucci, 197 A.D.3d 1453, 1454 [3d Dept 2021]). Petitioner's claim that the strips were not properly drug tested lacks merit, as the record establishes that the facility nurse visually identified the contraband as buprenorphine, and, therefore, further drug testing was unnecessary (see 7 NYCRR 1010.4 [d], [e]; Matter of Wiggins v Venettozzi, 203 A.D.3d at 1363).
"Turning to petitioner's procedural contentions, the hearing was commenced in a timely manner and was completed in accordance with proper extension requests" (Matter of Mena v Gutwein, 216 A.D.3d at 1385 [internal quotation marks and citations omitted]). In any event, compliance with the regulatory time limits is directory only, and there is no indication of any substantive prejudice to petitioner resulting from the delay (see id.; Matter of Anselmo v Annucci, 176 A.D.3d 1283, 1284 [3d Dept 2019]). To the extent that petitioner's remaining contentions are properly before us, including his claim that he received inadequate assistance, they have been considered and found to be lacking in merit.
Garry, P.J., Pritzker, Lynch, Ceresia and Mackey, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.