Opinion
2014-03-20
In the Matter of Shawn DOYLE, Petitioner, v. Albert PRACK, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Shawn Doyle, Elmira, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Shawn Doyle, Elmira, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: PETERS, P.J., McCARTHY, GARRY and ROSE, JJ.
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 which found petitioner guilty of violating a prison disciplinary rule.
When a search of petitioner's prison cell revealed a black wristband with a white “1ø” insignia, he was charged in a misbehavior report with possession of gang-related material. Following a tier III disciplinary hearing, petitioner was found guilty of the charge and that determination was affirmed on administrative appeal, prompting this CPLR article 78 proceeding.
We confirm. The misbehavior report, contraband receipt and testimony of both petitioner and the prison official trained in recognizing gang-related materials provide substantial evidence to support the determination of guilt ( see Matter of Scott v. Fischer, 109 A.D.3d 1066, 1066–1067, 971 N.Y.S.2d 594 [2013];Matter of Boyd v. Fischer, 108 A.D.3d 995, 995, 969 N.Y.S.2d 251 [2013] ). We reject petitioner's contention that he was improperly denied his right to observe the search of his cell; he testified that he was not present when the search began and, by the time he returned, the wristband had already been discovered ( see Matter of Johnson v. Fischer, 109 A.D.3d 1070, 1071, 971 N.Y.S.2d 590 [2013];Matter of Mitchell v. Fischer, 81 A.D.3d 1013, 1014, 916 N.Y.S.2d 847 [2011] ). Likewise, petitioner was not improperly denied documentary evidence in the form of a training certificate, inasmuch as it would have been redundant to the official's testimony that he had engaged in extensive training over the past 10 years in the recognition of gang-related materials ( see Matter of Barnes v. Prack, 101 A.D.3d 1277, 1278, 955 N.Y.S.2d 447 [2012];Matter of Gomez v. Fischer, 74 A.D.3d 1399, 1400, 902 N.Y.S.2d 212 [2010],lv. dismissed15 N.Y.3d 858, 909 N.Y.S.2d 688, 936 N.E.2d 454 [2010] ). The remainder of petitioner's contentions are either unpreserved by his failure to raise them during the hearing or have been examined and found to be without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.