Opinion
532829
07-22-2021
In the Matter of Roberto DEJESUS, Petitioner, v. R. MAYES, as Hearing Officer, et al., Respondents.
Roberto DeJesus, Attica, petitioner pro se. Letitia James, Attorney General, Albany (Owen Demuth of counsel), for respondents.
Roberto DeJesus, Attica, petitioner pro se.
Letitia James, Attorney General, Albany (Owen Demuth of counsel), for respondents.
Before: Egan Jr., J.P., Clark, Aarons, 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 Albany County) to review a determination of the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating a prison disciplinary rule.
A search of petitioner's prison cell revealed a commercially manufactured folding knife with a three-inch blade, which had been wrapped in, among other things, white toilet paper and hidden inside of a laundry detergent box located on top of a light fixture. As a result, petitioner was charged in a misbehavior report with possessing a weapon and smuggling. Following a tier III disciplinary hearing, petitioner was found guilty of possessing a weapon but not guilty of smuggling. The determination was upheld on administrative appeal, and this CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, hearing testimony and documentary evidence provide substantial evidence supporting the determination of guilt (see Matter of Douglas v. Annucci, 155 A.D.3d 1216, 1216–1217, 63 N.Y.S.3d 272 [2017] ; Matter of Davey v. Annucci, 153 A.D.3d 992, 993, 56 N.Y.S.3d 913 [2017] ; Matter of Sparks v. Annucci, 144 A.D.3d 1352, 1352–1353, 43 N.Y.S.3d 145 [2016] ). Petitioner's exculpatory claim that the weapon found in his cell did not belong to him, as well as his claim that the misbehavior report was retaliatory, presented credibility issues for the Hearing Officer to resolve (see Matter of Liggins v. New York State Dept. of Corr. & Community Supervision, 170 A.D.3d 1356, 1356–1357, 94 N.Y.S.3d 460 [2019], lv denied 34 N.Y.3d 902, 112 N.Y.S.3d 688, 136 N.E.3d 422 [2019] ; Matter of Davey v. Annucci, 153 A.D.3d at 993, 56 N.Y.S.3d 913 ; Matter of Cruz v. Annucci, 152 A.D.3d 1100, 1101, 59 N.Y.S.3d 820 [2017] ).
Turning to petitioner's remaining contentions, we are unpersuaded by petitioner's claim that his right to be present during the search of his cell was violated. The record establishes that petitioner was present when the correction officer who conducted the search discovered the weapon in his cell (see Matter of Spencer v. Annucci, 190 A.D.3d 1247, 1247, 136 N.Y.S.3d 921 [2021] ; Matter of Torres v. Annucci, 167 A.D.3d 1191, 1192, 89 N.Y.S.3d 758 [2018] ; Matter of Smith v. Selsky, 294 A.D.2d 629, 630, 742 N.Y.S.2d 677 [2002] ). Moreover, contrary to his contention, the record establishes that petitioner received all of the relevant and available documents that he requested and to which he was entitled (see Matter of Farrington v. Annucci, 148 A.D.3d 1810, 1811, 50 N.Y.S.3d 237 [2017] ; Matter of Cliff v. Selsky, 293 A.D.2d 885, 885–886, 740 N.Y.S.2d 532 [2002] ). Finally, we are unpersuaded by 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 on the part of the Hearing Officer (see e.g. Matter of Torres v. Annucci, 167 A.D.3d at 1192, 89 N.Y.S.3d 758 ). Petitioner's remaining contentions, to the extent that they are properly before us, have been considered and found to be without merit.
Egan Jr., J.P., Clark, Aarons, Pritzker and Colangelo, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.