Opinion
534612
11-03-2022
In the Matter of Jermaine DAVIS, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Prisoners’ Legal Services of New York, Mount Sinai (Rosanne Trabocchi of counsel), for petitioner. Letitia James, Attorney General, Albany (Beezly J. Kiernan of counsel), for respondent.
Prisoners’ Legal Services of New York, Mount Sinai (Rosanne Trabocchi of counsel), for petitioner.
Letitia James, Attorney General, Albany (Beezly J. Kiernan of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Pritzker, Fisher and McShan, 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 two determinations of respondent finding petitioner guilty of violating certain prison disciplinary rules. Petitioner, an incarcerated individual, was observed throwing, and unsuccessfully attempting to flush, two small bags into his toilet. Petitioner subsequently complied with a directive to tender the two small bags, which were found to contain 5.9 grams of a green or brown leafy substance that was visually identified as synthetic cannabinoids. As a result of this incident, petitioner was charged in a misbehavior report dated February 9, 2021 with possessing contraband, drug possession and drug distribution (hereinafter the first misbehavior report). Shortly thereafter, during a search of petitioner's cell, a correction officer discovered an altered hot pot, a tip of a glove containing a green leafy substance and three rolled-up pieces of paper on a desk containing a green leafy substance. The green leafy substances, weighing a combined 0.7 grams, were visually identified as synthetic cannabinoids. As a result of the discovery of these items in petitioner's cell, petitioner was charged in a second misbehavior report on the same day with possessing an altered item, possessing contraband, drug possession and drug distribution (hereinafter the second misbehavior report). Following a tier III disciplinary hearing on the first misbehavior report, petitioner was found guilty of the charges based upon his pleas of guilty. At the conclusion of a separate tier III disciplinary hearing on the second misbehavior report, petitioner was found guilty of all four charges alleged in that report. Following unsuccessful administrative appeals, petitioner commenced this CPLR article 78 proceeding challenging both determinations.
Initially, respondent concedes, and our review of the record confirms, that the part of the determination regarding the second misbehavior report finding petitioner guilty of possessing contraband, drug possession and drug distribution is not supported by substantial evidence and must be annulled. "However, because the penalty has been served and no loss of good time was imposed, remittal of the matter for a redetermination thereof is not necessary" ( Matter of Nix v. Venettozzi, 196 A.D.3d 933, 933, 151 N.Y.S.3d 738 [3d Dept. 2021] [citation omitted]). Nevertheless, because the remaining charge of possessing an altered item constitutes at most a tier II offense (see 7 NYCRR 270.2 [B][14][ii]), respondent is directed to expunge all references to the annulled charges from petitioner's institutional record, including "the reference to the tier III designation" ( Matter of Dagnone v. Annucci, 149 A.D.3d 1461, 1462, 52 N.Y.S.3d 740 [3d Dept. 2017] ; see Matter of Howard v. Coughlin, 212 A.D.2d 852, 853, 622 N.Y.S.2d 134 [3d Dept. 1995] ). The remaining part of the determination finding petitioner guilty of possessing an altered item is supported by substantial evidence consisting of the second misbehavior report and the hearing testimony from the author of that report (see Matter of Abdullah v. Department of Corr. & Community Supervision, 193 A.D.3d 1167, 1169, 145 N.Y.S.3d 659 [3d Dept. 2021] ; Matter of Torres v. Annucci, 167 A.D.3d 1191, 1192, 89 N.Y.S.3d 758 [3d Dept. 2018] ). Further, and contrary to petitioner's procedural contention, the misbehavior report provided the date, place, approximate time, description of the conduct alleged and rule violation, all of which sufficiently provided him notice of the alleged conduct and charge against him so that he could prepare a defense (see Matter of Headley v. Annucci, 205 A.D.3d 1189, 1190, 169 N.Y.S.3d 153 [3d Dept. 2022] ).
Because petitioner pleaded guilty to the charges contained in the first misbehavior report, he is precluded from challenging the sufficiency of the evidence supporting those charges (see Matter of Cuppuccino v. Annucci, 206 A.D.3d 1425, 1426, 168 N.Y.S.3d 707 [3d Dept. 2022] ; Matter of Gonzalez v. Annucci, 199 A.D.3d 1146, 1147, 156 N.Y.S.3d 588 [3d Dept. 2021] ). Moreover, "[t]here is no indication in the record that his guilty pleas were coerced or otherwise not knowing, voluntary and intelligent" ( Matter of Pequero v. Annucci, 156 A.D.3d 986, 986, 64 N.Y.S.3d 611 [3d Dept. 2017] ). Finally, we reject petitioner's claim that the disciplinary determination concerning the first misbehavior report is barred by the doctrine of res judicata. The disciplinary determination regarding the second misbehavior report arose out of a separate and distinct incident of misconduct, as it was based upon a separate search of petitioner's cell that uncovered distinct contraband (see Matter of Strauss v. Venettozzi, 186 A.D.3d 1862, 1863, 131 N.Y.S.3d 415 [3d Dept. 2020] ; Matter of Alicea v. Fischer, 108 A.D.3d 888, 888, 968 N.Y.S.2d 736 [3d Dept. 2013] ). To the extent that petitioner's remaining contentions are properly before us, they have been considered and found to be without merit.
Garry, P.J., Egan Jr., Pritzker, Fisher and McShan, JJ., concur.
ADJUDGED that the determination dated February 17, 2021 rendered on the first misbehavior report filed on February 9, 2021 is confirmed, without costs, and petition dismissed to that extent.
ADJUDGED that the determination dated February 17, 2021 rendered on the second misbehavior report filed on February 9, 2021 is modified, without costs, by annulling so much thereof as found petitioner guilty of possessing contraband, drug possession and drug distribution; petition granted to that extent, and respondent is directed to expunge all references to these charges and the tier III designation from petitioner's institutional record; and, as so modified, confirmed.