Opinion
2014-11-14
In the Matter of Ian DAWES, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, et al., Respondents.
Ian Dawes, Stormville, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Kate H. Nepvue of counsel), for respondents.
Ian Dawes, Stormville, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Kate H. Nepvue of counsel), for respondents.
Before: PETERS, P.J., McCARTHY, ROSE, EGAN JR. and LYNCH, JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of respondent Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules and a determination of the Board of Parole which denied petitioner's request for parole release.
In 1987, while on probation for his 1985 conviction of criminal possession of stolen property, petitioner fatally shot another person over a drug dispute. He was convicted of manslaughter in the first degree and criminal possession of a weapon in the second degree and sentenced to an aggregate term of 8 1/3 to 25 years in prison, to run consecutively to the 1 to 3 years imposed upon his 1985 conviction. While incarcerated, in 1995, he was convicted of promoting prison contraband in the first degree for possessing a sharpened metal weapon and sentenced to 3 1/2 to 7 years in prison, to run consecutively to the sentence he was then serving. In August 2012, petitioner appeared before the Board of Parole; his request for release was denied and he was ordered to be held for an additional 24 months. That determination was subsequently affirmed on administrative appeal.
Petitioner's reappearance has been postponed pending resolution of his administrative appeal of a new prison disciplinary determination.
In March 2012, petitioner was charged in a misbehavior report with assault, violent conduct, possession of a weapon or dangerous instrument and refusal to obey a direct order after he approached another inmate from behind and stabbed him in the left side of the head with a pen. Following a tier III disciplinary rehearing, petitioner was found guilty as charged. After that determination was affirmed on administrative appeal, petitioner commenced this proceeding, challenging both the prison disciplinary determination and the determination denying him parole.
We now uphold both determinations. Turning first to the denial of parole, we conclude that the Board properly considered the relevant statutory factors, including petitioner's criminal history, significant prison disciplinary record, COMPAS Reentry Assessment, sentencing minutes and release plans ( see Matter of Hamilton v. New York State Div. of Parole, 119 A.D.3d 1268, 1273, 990 N.Y.S.2d 714 [2014]; Matter of Partee v. Evans, 117 A.D.3d 1258, 1259, 984 N.Y.S.2d 894 [2014], lv. denied24 N.Y.3d 901, 2014 WL 4357485 [2014] ). Although petitioner's COMPAS Risk and Needs Assessment Instrument indicated that he was at a low risk for violence, rearrest and absconding, “[t]he COMPAS instrument ... is only one factor that the Board [is] required to consider” ( Matter of Rivera v. New York State Div. of Parole, 119 A.D.3d 1107, 1109, 990 N.Y.S.2d 295 [2014] ). Nor did the Board erroneously consider the circumstances of the crimes underlying his 1985 and 1987 convictions although those sentences would have expired if petitioner had not been convicted of additional crimes. “[P]ursuant to the provisions of Penal Law § 70.30(1)(b), the minimum and maximum sentences of [his] indeterminate consecutive sentences [were] ... ‘added to form aggregate minimum and maximum wholes' ” ( Matter of Santiago v. Alexander, 80 A.D.3d 1105, 1106, 916 N.Y.S.2d 529 [2011], lv. denied17 N.Y.3d 705, 2011 WL 2535261 [2011], quoting People v. Buss, 11 N.Y.3d 553, 557, 872 N.Y.S.2d 413, 900 N.E.2d 964 [2008] ). Petitioner does not contend that his consecutive sentences were improperly aggregated; thus, he was “subject to all the sentences ... that make up the merged or aggregate sentence he is serving” (People v. Buss, 11 N.Y.3d at 557–558, 872 N.Y.S.2d 413, 900 N.E.2d 964; see Matter of Santiago v. Alexander, 80 A.D.3d at 1106, 916 N.Y.S.2d 529; see also People v. Brinson, 21 N.Y.3d 490, 495–496, 972 N.Y.S.2d 182, 995 N.E.2d 144 [2013] ). In short, the Board's determination must be confirmed.
With respect to the prison disciplinary determination, it is supported by substantial evidence in the form of the misbehavior report, testimony of the investigating officers, and the contemporaneous reports and memoranda ( see Matter of McFadden v. Prack, 120 A.D.3d 853, 854, 990 N.Y.S.2d 376 [2014], lv. dismissed24 N.Y.3d 930, 993 N.Y.S.2d 542, 17 N.E.3d 1138 [2014]; Matter of Hyatt v. Fischer, 118 A.D.3d 1192, 1192, 987 N.Y.S.2d 267 [2014] ). The alleged inconsistencies in the testimony and documentary evidence presented a credibility issue for the Hearing Officer to resolve ( see Matter of Hyatt v. Fischer, 118 A.D.3d at 1192, 987 N.Y.S.2d 267). In addition, petitioner's contention that a pen cannot be a weapon under the relevant disciplinary rules has been previously considered by this Court and rejected ( see Matter of Ferguson v. Fischer, 107 A.D.3d 1272, 1272 and n., 967 N.Y.S.2d 253 [2013]; 7 NYCRR 270.2[B][14][i] ). Inasmuch as there is no dispute regarding the content of the testimony of petitioner's inmate witnesses who testified outside his presence, and petitioner wished only to ask them questions that were immaterial, we reject his assertion that annulment is required on that basis ( see Matter of Pelaez v. Early, 102 A.D.3d 1030, 1030, 957 N.Y.S.2d 913 [2013] ).
Petitioner's remaining arguments, to the extent that they are preserved, have been considered and found to be lacking in merit.
ADJUDGED that the determinations are confirmed, without costs, and petition dismissed.