Wallace v. Annucci

5 Citing cases

  1. Poliandro v. Venettozzi

    160 A.D.3d 1329 (N.Y. App. Div. 2018)   Cited 2 times

    Petitioner's denial that the object constituted a weapon presented a credibility issue for the Hearing Officer to resolve (seeMatter of Boitschenko v. Annucci, 156 A.D.3d 1066, 1066, 65 N.Y.S.3d 488 [2017] ; Matter of Freeman v. Annucci, 151 A.D.3d 1509, 1510, 54 N.Y.S.3d 602 [2017] ). Turning to the procedural claims, inasmuch as petitioner was at his mandatory work program at the time, he was not improperly denied the opportunity to observe the cell frisk (see Matter of Wallace v. Annucci, 153 A.D.3d 1499, 1500, 59 N.Y.S.3d 913 [2017] ; Matter of Mason v. Annucci, 153 A.D.3d 1013, 1014, 56 N.Y.S.3d 906 [2017] ). Finally, contrary to petitioner's contention, the determination of guilt was premised on the evidence presented, rather than any alleged hearing officer bias (see Matter of Williams v. Department of Corr. & Community Supervision, 155 A.D.3d 1207, 1207, 63 N.Y.S.3d 267 [2017] ; Matter of Kalwasinski v. Venettozzi, 152 A.D.3d 853, 854, 54 N.Y.S.3d 888 [2017] ).

  2. Ortiz v. Annucci

    160 A.D.3d 1192 (N.Y. App. Div. 2018)   Cited 5 times

    We confirm. The misbehavior report, testimony from the correction officers who performed the search and documentary evidence provide substantial evidence to support the determination of guilt (seeMatter of Shearer v. Annucci , 155 A.D.3d 1277, 1277, 65 N.Y.S.3d 249 [2017] ; Matter of Baez v. Venettozzi , 155 A.D.3d 1231, 1232, 64 N.Y.S.3d 735 [2017] ). Inasmuch as petitioner was already out of his cube at the time of the search, he was not improperly denied the opportunity to observe it (seeMatter of Wallace v. Annucci , 153 A.D.3d 1499, 1500, 59 N.Y.S.3d 913 [2017] ; Matter of Mason v. Annucci , 153 A.D.3d 1013, 1014, 56 N.Y.S.3d 906 [2017] ). Contrary to petitioner's contention, the Hearing Officer was not obligated to independently assess the credibility of the confidential information, as the determination of guilt was based upon the actual discovery of the weapon (seeMatter of Clark v. Smith , 155 A.D.3d 1232, 1233, 63 N.Y.S.3d 276 [2017] ; Matter of Mason v. Annucci , 153 A.D.3d at 1014, 56 N.Y.S.3d 906). Finally, we find that the misbehavior report provided petitioner adequate notice of the charges against him, thus affording him an opportunity to prepare a defense (seeMatter of Robinson v. Lee , 155 A.D.3d 1169, 1170, 62 N.Y.S.3d 820 [2017] ; Matter of Caraway v. Annucci , 144 A.D.3d 1296, 1297, 45 N.Y.S.3d 221 [2016], lv denied 29 N.Y.3d 903, 2017 WL 1223645 [2017] ). Petitioner's remaining contentions, to the extent not specifically addressed, have been examined and found to be lacking in merit.ADJUDGED that the determination is

  3. Wood v. Annucci

    158 A.D.3d 856 (N.Y. App. Div. 2018)   Cited 4 times

    Although petitioner, in support of his contention that the weapon was planted, requested the testimony of inmates from his cell block to establish the fact that the cell doors are open on the block at times during the day, he admitted that the requested witnesses did not have any knowledge regarding whether the cell doors were open on the date and time when he contends the weapon was planted. Inasmuch as the Hearing Officer conceded the fact that cell doors are open at certain times on petitioner's cell block, the requested testimony was properly denied as cumulative and redundant (see Matter of Thorpe v. Fischer, 67 A.D.3d 1101, 1102, 889 N.Y.S.2d 690 [2009] ; Matter of Brown v. Taylor, 62 A.D.3d 1230, 1231, 882 N.Y.S.2d 321 [2009] ). Finally, petitioner was not denied the opportunity to observe the cell search, insofar as he was out of his cell working in the metal shop at the time of the search (see Matter of Wallace v. Annucci, 153 A.D.3d 1499, 1500, 59 N.Y.S.3d 913 [2017] ; Matter of Bartello v. Annucci, 142 A.D.3d 1194, 1194, 37 N.Y.S.3d 463 [2016] ). Petitioner's remaining claims have been considered and found to be without merit.ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

  4. Reeves v. Annucci

    157 A.D.3d 1180 (N.Y. App. Div. 2018)   Cited 5 times

    Preliminarily, respondent concedes that the drug use and possession charges set forth in the two misbehavior reports are duplicative because both sets of charges arose out of the same incident, that the determination of guilt resulting from the October 10, 2016 misbehavior report should be annulled and all references thereto expunged from petitioner's institutional record. Because the penalty imposed included a recommended loss of good time, this matter must be remitted for a redetermination of the penalty (see Matter of Wallace v. Annucci, 153 A.D.3d 1499, 1500, 59 N.Y.S.3d 913 [2017] ). Accordingly, respondent's determination is modified to that extent.

  5. Laliveres v. Annucci

    156 A.D.3d 1106 (N.Y. App. Div. 2017)   Cited 6 times

    We confirm. The misbehavior report, unusual incident report submitted for in camera review and the hearing testimony from the correction officer who discovered the contraband provide substantial evidence to support the determination of guilt (see Matter of Wendell v. Annucci, 149 A.D.3d 1430, 1430–1431, 51 N.Y.S.3d 707 [2017] ; see also 7 NYCRR 270.2 [B][14] [xiii], [xv] ). Petitioner's claim that there were no drugs inside of the Walkman when he tendered the device to another inmate created a credibility issue for the Hearing Officer to resolve (see Matter of Wallace v. Annucci, 153 A.D.3d 1499, 1500, 59 N.Y.S.3d 913 [2017] ; Matter of Oliver v. Fischer, 107 A.D.3d 1268, 1269, 967 N.Y.S.2d 248 [2013] ). To the extent that petitioner contends that the sublingual strips were not properly drug tested, the record establishes that the facility's nurse visually identified the contraband as the prescription drug suboxone, and, therefore, further drug testing was unnecessary (see 7 NYCRR 1010.4 [d], [e]; Matter of Bernard v. Annucci, 148 A.D.3d 1448, 1449, 50 N.Y.S.3d 189 [2017] ; Matter of Rivera v. Prack, 138 A.D.3d 1267, 1268, 28 N.Y.S.3d 351 [2016] ; Matter of Campbell v. Prack, 118 A.D.3d 1202, 1203, 986 N.Y.S.2d 896 [2014] ). Petitioner's challenge to the chain of custody was not raised at the hearing and, therefore, is not preserved for our review (see Matter of Coates v. Fischer, 108 A.D.3d 997, 998, 969 N.Y.S.2d 254 [2013] ; Matter of Torres v. Selsky, 8 A.D.3d 775, 775, 777 N.Y.S.2d 815 [2004] ).