Opinion
09-21-2017
In the Matter of Lusher WALLACE, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Lusher Wallace, Coxsackie, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Lusher Wallace, Coxsackie, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco 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 respondent finding petitioner guilty of violating certain prison disciplinary rules.
A correction officer conducted a search of petitioner's cell and found, among other things, quantities of a brown loose powder and a green leafy substance that both tested positive for amphetamine. Petitioner was thereafter charged in a misbehavior report with possessing an intoxicant and drug possession and, following a tier III disciplinary hearing, petitioner was found guilty as charged. The determination was affirmed on administrative appeal, and this CPLR article 78 proceeding ensued.
Respondent does not defend that part of the determination finding petitioner guilty of having possessed an intoxicant and, indeed, frankly states that "[t]he record does not appear to support" it. Our review of the record leaves us far less convinced of the hopelessness of respondent's cause but, in light of respondent's admission to one of "the ... errors pointed out in [petitioner]'s brief" and concomitant refusal to offer a defense, we choose to annul that part of the determination "without passing in detail" upon it ( 4 CJS, Appeal and Error § 747 ). Substantial evidence, in the form of the detailed misbehavior report, hearing testimony and information considered by the Hearing Officer, does exist to support that part of the determination finding petitioner guilty of possessing drugs (see Matter of Wendell v. Annucci, 149 A.D.3d 1430, 1430–1431, 51 N.Y.S.3d 707 [2017] ; Matter of Austin v. Annucci, 145 A.D.3d 1263, 1264, 42 N.Y.S.3d 681 [2016] ). Petitioner's claim that he did not possess drugs presented a credibility issue for the Hearing Officer to resolve (see Matter of Shepherd v. Annucci, 142 A.D.3d 1244, 1244, 38 N.Y.S.3d 628 [2016], lv. denied 28 N.Y.3d 914, 2017 WL 525381 [2017] ; Matter of Belle v. Prack, 140 A.D.3d 1509, 1510, 35 N.Y.S.3d 513 [2016] ). Nevertheless, since part of the determination must be annulled and the penalty included a recommended loss of good time, remittal is required for a redetermination of the penalty (see Matter of Dizak v. Prack, 120 A.D.3d 1472, 1473, 992 N.Y.S.2d 373 [2014], lv. denied 24 N.Y.3d 916, 2015 WL 687276 [2015] ).
Petitioner's remaining contentions are unavailing. Notwithstanding a clerical error on one of the drug testing forms, the hearing testimony, including the testimony from the correction officer who performed the drug tests, and the related documentation establish that the rules and regulations governing drug testing were followed (see Matter of Sealy v. New York State Dept. of Corr. & Community Supervision, 147 A.D.3d 1127, 1127, 45 N.Y.S.3d 814 [2017], lv. denied 29 N.Y.3d 912, 2017 WL 2468592 [2017] ; Matter of Bailey v. Prack, 140 A.D.3d 1508, 1509, 37 N.Y.S.3d 163 [2016], lv. denied 28 N.Y.3d 904, 2016 WL 6208984 [2016] ). Further, since petitioner was away from his cell when the cell search was conducted, he was not improperly denied the opportunity to observe it (see Matter of Mason v. Annucci, 153 A.D.3d 1013, 1014, 56 N.Y.S.3d 906, 906 [2017] ; Matter of Bartello v. Annucci, 142 A.D.3d 1194, 1194, 37 N.Y.S.3d 463 [2016] ). Finally, the record gives no reason to believe that the Hearing Officer was biased against petitioner or that the determination flowed from any alleged bias (see Matter of Bekka v. Annucci, 137 A.D.3d 1446, 1447, 27 N.Y.S.3d 292 [2016] ). Petitioner's remaining contentions are either unpreserved for our review or are lacking in merit.
ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of possessing an intoxicant; petition granted to that extent, respondent is directed to expunge all references to this charge from petitioner's institutional record and matter remitted to respondent for an administrative redetermination of the penalty imposed upon the remaining violation; and, as so modified, confirmed.
PETERS, P.J., EGAN JR., DEVINE, CLARK and AARONS, JJ., concur.