Opinion
524641.
11-09-2017
In the Matter of Frederick CLARK, Petitioner, v. Brandon SMITH, as Superintendent of Greene Correctional Facility, Respondent.
Frederick Clark, New York City, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of Counsel), for respondent.
Frederick Clark, New York City, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of Counsel), for respondent.
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 certain prison disciplinary rules.
A correction officer received an anonymous note indicating that petitioner had a shank hidden under the radiator in his cell. The officer conducted a search of petitioner's cell and found a toothbrush handle that had been sharpened on one end taped to the bottom of the radiator. As a result, petitioner was charged in a misbehavior report with possessing a weapon and possessing an altered item. He was found guilty of the charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, related documentation and testimony of the correction officer who conducted the search and recovered the sharpened object provide substantial evidence supporting the determination of guilt (see Matter of Davey v. Annucci, 153 A.D.3d 992, 993, 56 N.Y.S.3d 913 [2017] ; Matter of Sawyer v. Annucci, 140 A.D.3d 1499, 1500, 35 N.Y.S.3d 511 [2016] ). Petitioner's testimony that the misbehavior report was written in retaliation for grievances and complaints that he had filed against correction officers presented a credibility issue for the Hearing Officer to resolve (see Matter of Williams v. Venettozzi, 150 A.D.3d 1501, 1501–1502, 54 N.Y.S.3d 221 [2017] ; Matter of Marhone v. Schuck, 142 A.D.3d 1232, 1232, 37 N.Y.S.3d 648 [2016] ). Moreover, we reject petitioner's contention that the Hearing Officer erred by not independently assessing the reliability of the anonymous note given that the note prompted the search that led to the discovery of the weapon, but did not contain confidential information upon which the determination was based (see Matter of Mason v. Annucci, 153 A.D.3d 1013, 1014, 56 N.Y.S.3d 906 [2017] ; Matter of Shufelt v. Annucci, 138 A.D.3d 1336, 1337–1338, 31 N.Y.S.3d 243 [2016] ). Likewise, we find no merit to petitioner's challenge to the timeliness of the hearing inasmuch as valid extensions were obtained and the hearing was completed within the time period set forth therein (see Matter of Jackson v. Annucci, 144 A.D.3d 1285, 1286, 40 N.Y.S.3d 283 [2016], lv. denied 29 N.Y.3d 907, 2017 WL 1842962 [2017] ). To the extent that petitioner's remaining arguments are properly before us, they have been considered and are unpersuasive.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
McCARTHY, J.P., GARRY, EGAN JR., CLARK and MULVEY, JJ., concur.