Opinion
No. 168 TP 23-01589
05-03-2024
IN THE MATTER OF MICHAEL DERBY, PETITIONER, v. ANTHONY ANNUCCI, ACTING COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT.
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (RACHEL RAIMONDI OF COUNSEL), FOR RESPONDENT.
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (RACHEL RAIMONDI OF COUNSEL), FOR RESPONDENT.
PRESENT: LINDLEY, J.P., CURRAN, BANNISTER, GREENWOOD, AND NOWAK, JJ.
Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Wyoming County [Michael M. Mohun, A.J.], entered September 18, 2023) to review a determination of respondent. The determination found after a tier III hearing that petitioner had violated various incarcerated individual rules.
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul that part of a determination, following a tier III disciplinary hearing, that he violated incarcerated individual rule 113.23 (7 NYCRR 270.2 [B] [14] [xiii] [contraband]). Contrary to petitioner's contention, the misbehavior report and testimony at the hearing constitute substantial evidence to support the determination that he violated that rule by possessing cellophane (see generally Matter of Foster v Coughlin, 76 N.Y.2d 964, 966 [1990]; Matter of Livingston v Annucci, 222 A.D.3d 1391, 1392 [4th Dept 2023]). Any conflicting testimony from petitioner and the other individual witnesses merely presented credibility issues for the Hearing Officer to resolve (see Foster, 76 N.Y.2d at 966; Matter of Delgado v Annucci, 221 A.D.3d 1512, 1513 [4th Dept 2023]).
Petitioner next contends that there was not substantial evidence that he possessed contraband because the rule does not expressly prohibit his possession of the item in question, i.e., cellophane. We reject that contention. Inasmuch as the rule states "that any article not 'specifically authorized' by the facility superintendent, his or her designee, or departmental or local facility rules constitutes contraband..., the fact that the cited rule did not expressly prohibit the item[ ] that petitioner was charged with possessing is of no moment" (Matter of McCollum v Fischer, 61 A.D.3d 1194, 1194 [3d Dept 2009], lv denied 13 N.Y.3d 703 [2009]). We note that petitioner "does not contend that possession of the [cellophane] had been authorized by the Superintendent at this correctional facility" (Matter of Mills v Coombe, 231 A.D.2d 923, 924 [4th Dept 1996]).
To the extent that petitioner challenges the constitutionality of the rule on the grounds that it is vague and overbroad, we conclude that his challenge is unpreserved for our review (see Matter of Bottom v Annucci, 26 N.Y.3d 983, 985 [2015]; Matter of Rosa v Fischer, 87 A.D.3d 1252, 1253 [3d Dept 2011], lv denied 19 N.Y.3d 802 [2012]). We lack the discretionary authority to reach that issue (see Matter of Cornell v Annucci, 173 A.D.3d 1760, 1761 [4th Dept 2019]; see generally Matter of Khan v New York State Dept. of Health, 96 N.Y.2d 879, 880 [2001]).
Finally, petitioner contends that the penalty imposed is excessive. Inasmuch as he failed to raise that contention in his administrative appeal, he" 'failed to exhaust his administrative remedies[,] and this Court has no discretionary power to reach that issue'" (Matter of Jay v Fischer, 118 A.D.3d 1364, 1364 [4th Dept 2014], appeal dismissed 24 N.Y.3d 975 [2014]; see Matter of Inesti v Rizzo, 155 A.D.3d 1581, 1583 [4th Dept 2017]).