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In Warren, unlike here, the Hearing Officer disregarded the X-ray evidence and the testimony of the doctor who interpreted it. And, although the subsequent X ray and results of the contraband watch may have supported a different determination, we find the determination of guilt to be properly supported by substantial evidence (see Matter of Gee v Goord, 21 AD3d 636, 637).
Summary of this case from In re Mark ScottOpinion
No. 502387.
March 27, 2008.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.
Vincent Warren, Dannemora, petitioner pro se.
Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), for respondent.
Before: Mercure, J.P., Rose, Kane and Malone Jr., JJ.
At the conclusion of a tier III disciplinary hearing, petitioner was found guilty of possessing a weapon and smuggling. Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding challenging the determination.
The record establishes that petitioner allegedly caused a metal detector to sound prior to a visit. After a strip frisk revealed nothing, authorization was obtained for an X ray, which showed that petitioner had a foreign object in his abdomen. According to the escorting correction officer, petitioner admitted that the object was a razor. As a result, a misbehavior report was issued, charging petitioner with smuggling and possession of a weapon.
At the disciplinary hearing, the Hearing Officer agreed to disregard the X ray evidence, as well as any testimony by the doctors who interpreted the X rays, because one doctor was unavailable to testify as he was no longer employed by the Department of Correctional Services. Thus, the Hearing Officer based the determination of guilt on only the misbehavior report and the testimony of the correction officer who authored it.
However, the record also reveals that, after the initial X ray, petitioner was isolated in a one-on-one contraband watch cell. Eventually a piece of plastic was discovered in his feces and a subsequent X ray confirmed that no other foreign objects remained in petitioner's body. As no razor was ever recovered and there was no proof that the piece of plastic recovered was an "item that may be classified as a weapon or dangerous instrument by description, use or appearance" ( 7 NYCRR 270.2 [B] [14] [i]), we conclude that the determination finding him guilty of possessing a weapon is not supported by substantial evidence ( see Matter of Ganz v Selsky, 34 AD3d 879, 880; Matter of Williams v Selsky, 307 AD2d 571, 571). Nor is there substantial evidence to support the smuggling charge.
Petitioner was charged in a second misbehavior report with an unhygienic act and contraband possession after petitioner allegedly placed his feces containing the plastic wrap on his feed-up tray. Although petitioner asserts that these charges were subsequently dismissed, that contention is not verifiable on this record.
Accordingly, the determination must be annulled with all references thereto expunged from petitioner's institutional record.
Adjudged that the determination is annulled, without costs, petition granted and respondent is directed to expunge all references to this matter from petitioner's institutional record.