Opinion
12-08-2016
In the Matter of Derrel AUSTIN, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Derrel Austin, Romulus, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.
Derrel Austin, Romulus, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.
Before: McCARTHY, J.P., EGAN JR., LYNCH, ROSE and CLARK, JJ.
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.
Following an investigation that revealed petitioner's involvement in the supply and distribution of synthetic marihuana, or K–2, within the prison facility to five other inmates, he was charged in a misbehavior report with smuggling, selling an intoxicant and possession of a dangerous substance. Following a tier III disciplinary hearing, petitioner was found guilty of smuggling and selling an intoxicant. The determination was affirmed on administrative appeal, and this CPLR article 78 proceeding ensued.We confirm. The misbehavior report and hearing testimony, as well as the confidential testimony submitted for in camera review, provide substantial evidence to support the determination that petitioner was guilty of smuggling and selling an intoxicant (see Matter of Ellison v. Annucci, 142 A.D.3d 1233, 1234, 38 N.Y.S.3d 631 [2016] ; Matter of Ralands v. Prack, 131 A.D.3d 1334, 1335, 16 N.Y.S.3d 788 [2015] ). Although petitioner denied that he smuggled or sold an intoxicant, these exculpatory claims presented credibility issues for the Hearing Officer to resolve (see Matter of Gano v. Venettozzi, 142 A.D.3d 1240, 1241, 38 N.Y.S.3d 626 [2016] ; Matter of Robinson v. Annucci, 122 A.D.3d 1055, 1055, 994 N.Y.S.2d 732 [2014] ). We are also unpersuaded by petitioner's assertion that synthetic marihuana is not an intoxicant and that he was therefore improperly charged with use of an intoxicant (see Matter of Roman v. Prack, 133 A.D.3d 959, 960, 18 N.Y.S.3d 568 [2015] ; Matter of Ralands v. Prack, 131 A.D.3d at 1335, 16 N.Y.S.3d 788 ; compare Matter of Burt v. Annucci, 131 A.D.3d 751, 752, 14 N.Y.S.3d 238 [2015] ).
Turning to the balance of petitioner's contentions, we find that the misbehavior report was sufficiently detailed to provide him with adequate notice of the charges so as to enable him to prepare a defense (see 7 NYCRR 251–3.1 [c][1], [4]; Matter of Bailey v. Annucci, 142 A.D.3d 1195, 1196, 37 N.Y.S.3d 633 [2016] ; Matter of Zimmerman v. Annucci, 139 A.D.3d 1205, 1206, 29 N.Y.S.3d 827 [2016] ). We further reject petitioner's argument that he was denied adequate employee assistance given that the Hearing Officer remedied any purported deficiencies and petitioner has not demonstrated that he was prejudiced (see Matter of McMaster v. Annucci, 138 A.D.3d 1289, 1290, 31 N.Y.S.3d 239 [2016], lv. denied 28 N.Y.3d 902, 2016 WL 4742537 [2016] ; Matter of Pooler v. Fischer, 107 A.D.3d 1256, 1257, 969 N.Y.S.2d 564 [2013], lv. denied 22 N.Y.3d 855, 2013 WL 6009632 [2013] ). Finally, upon reviewing the record, including the confidential testimony, we find no basis to conclude that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Bailey v. Annucci, 142 A.D.3d at 1196, 37 N.Y.S.3d 633; Matter of Linares v. Fischer, 119 A.D.3d 1300, 1301, 989 N.Y.S.2d 703 [2014], lv. denied 24 N.Y.3d 909, 2014 WL 6433287 [2014] ). We have considered petitioner's remaining contentions and find them to be without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.