Opinion
532197
09-23-2021
In the Matter of Michael ANTINUCHE, Petitioner, v. Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Michael Antinuche, Fallsburgh, petitioner pro se. Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Michael Antinuche, Fallsburgh, petitioner pro se.
Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Before: Garry, P.J., Lynch, Clark, Pritzker and Colangelo, JJ.
MEMORANDUM AND JUDGMENT Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Sullivan County) to review a determination of the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner, an incarcerated individual, was charged with violating various prison disciplinary rules after an investigation revealed that he had attempted to recruit incarcerated individuals to assault another prisoner who had wronged him. Following a tier III disciplinary hearing, petitioner was found guilty of violating the rules prohibiting violent conduct, assault and solicitation. The determination was affirmed upon administrative review, with a later discretionary review modifying the penalty. This CPLR article 78 proceeding ensued.
We confirm. Petitioner appears to have abandoned any challenge to the sufficiency of the evidence supporting the determination of guilt by failing to address that issue in his brief (see Matter of Scott v. Annucci, 194 A.D.3d 1178, 1178, 147 N.Y.S.3d 745 [2021] ; Matter of Davison v. Annucci, 169 A.D.3d 1318, 1318 n., 95 N.Y.S.3d 403 [2019] ). In any event, the misbehavior report, hearing testimony from the report's author and confidential testimony from the author and others constitute substantial evidence to support the determination (see Matter of Everett v. Venettozzi, 170 A.D.3d 1408, 1409, 96 N.Y.S.3d 703 [2019] ; Matter of Bachiller v. Annucci, 166 A.D.3d 1186, 1186, 89 N.Y.S.3d 335 [2018] ).
We next reject petitioner's various arguments as to how he was deprived of the opportunity to present a defense. The Hearing Officer appropriately rejected as unreasonable petitioner's demand to view approximately two weeks of video footage to assess whether he could be heard soliciting an assault from his cell, particularly given that the footage was rendered redundant by the testimony presented on that point and could not rule out that the alleged conduct had occurred via other means (see Matter of Rodriguez v. Coughlin, 211 A.D.2d 926, 927, 621 N.Y.S.2d 956 [1995] ; Matter of Smith v. Coughlin, 161 A.D.2d 1082, 1082–1083, 558 N.Y.S.2d 208 [1990] ). As the alleged conduct could have occurred at any point during that two-week period, the Hearing Officer also properly denied petitioner's truncated request for several hours of the video footage (see Matter of Samuels v. Annucci, 142 A.D.3d 1200, 1201, 37 N.Y.S.3d 465 [2016] ; Matter of Allen v. Venettozzi, 139 A.D.3d 1208, 1209, 29 N.Y.S.3d 829 [2016], lv denied 28 N.Y.3d 903, 2016 WL 4998231 [2016] ). Further, as petitioner "does not have a right to confront or cross-examine the confidential informants," the Hearing Officer correctly denied his request for such testimony ( Matter of Heard v. Annucci, 155 A.D.3d 1166, 1167, 62 N.Y.S.3d 819 [2017] ; see Matter of Sierra v. Rodriguez, 158 A.D.3d 880, 881, 70 N.Y.S.3d 593 [2018] ; Matter of Tulloch v. Fischer, 90 A.D.3d 1370, 1371, 935 N.Y.S.2d 696 [2011] ). Notwithstanding petitioner's further complaint, the misbehavior report gave adequate notice of the charges against him despite its failure to specify the exact date and time that his alleged misconduct occurred (see Matter of Ortiz v. Annucci, 163 A.D.3d 1383, 1384, 80 N.Y.S.3d 746 [2018] ; Matter of Willacy v. Fischer, 67 A.D.3d 1099, 1100, 889 N.Y.S.2d 261 [2009] ). Finally, we reject petitioner's contention that the Hearing Officer was biased, "as the record reflects that the determination of guilt flowed from the evidence presented and not from any alleged bias" ( Matter of DeJesus v. Mayes, 196 A.D.3d 992, 992, 148 N.Y.S.3d 406 [2021] ; see Matter of Bellamy v. Noeth, 195 A.D.3d 1289, 1290, 145 N.Y.S.3d 875 [2021] ).
Garry, P.J., Lynch, Clark, Pritzker and Colangelo, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.