Opinion
524174
04-26-2018
In the Matter of Keith G. WILSON, Petitioner, v. Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Keith G. Wilson, Coxsackie, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Keith G. Wilson, Coxsackie, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: McCarthy, J.P., Lynch, Clark, Aarons and Pritzker, JJ.
MEMORANDUM AND JUDGMENT
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 the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating a prison disciplinary rule.
Petitioner was charged in a misbehavior report with possessing a weapon after an ice pick type weapon was discovered inside his right sock during a random pat frisk. Following a tier III disciplinary hearing, petitioner was found guilty and that determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. Initially, we find that the hearing transcript, together with the audiotape of the hearing, are sufficient for meaningful judicial review, despite certain inaudible gaps and typographical errors (see Matter of Shearer v. Annucci, 155 A.D.3d 1277, 1278, 65 N.Y.S.3d 249 [2017] ; Matter of Coons v. Fischer, 106 A.D.3d 1302, 1303, 964 N.Y.S.2d 778 [2013] ). Turning to the merits, the misbehavior report, related documentation and testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Gano v. Venettozzi, 142 A.D.3d 1240, 1240, 38 N.Y.S.3d 626 [2016] ; Matter of Tavarez v. Annucci, 134 A.D.3d 1374, 1375, 21 N.Y.S.3d 767 [2015] ). Petitioner's assertion that the weapon was planted by the correction officer created a credibility issue for the Hearing Officer to resolve (see Matter of Tavarez v. Annucci, 134 A.D.3d at 1375, 21 N.Y.S.3d 767; Matter of Sanchez v. Annucci, 126 A.D.3d 1194, 1194–1195, 3 N.Y.S.3d 631 [2015] ). To the extent that petitioner asserts that he was denied certain witnesses, he raises such issue for the first time before this Court and, therefore, it is unpreserved for our review (see Matter of Rico v. Fischer, 112 A.D.3d 1249, 1250, 976 N.Y.S.2d 751 [2013] ; Matter of Toro v. Fischer, 104 A.D.3d 1036, 1037, 960 N.Y.S.2d 754 [2013] ). In any event, the record belies petitioner's contention that the Hearing Officer denied any requested witnesses.ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
McCarthy, J.P., Lynch, Clark, Aarons and Pritzker, JJ., concur.