Opinion
532615
09-30-2021
In the Matter of Giovanni EVANS, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Giovanni Evans, Marcy, petitioner pro se. Letitia James, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
Giovanni Evans, Marcy, petitioner pro se.
Letitia James, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Clark, Pritzker and Reynolds Fitzgerald, 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 was charged in a misbehavior report dated March 5, 2020 with stalking, harassment, making threats and violating facility correspondence procedures. The disciplinary charges stemmed from petitioner "kiting" multiple letters to an individual listed on his negative correspondence list, wherein petitioner harassed the recipient, made various threats against her and announced his intention to stalk her upon his release. At the disciplinary hearing that followed, petitioner pleaded guilty to harassment and making threats and not guilty to the remaining charges. Petitioner thereafter was found guilty of all charges and a penalty was imposed, and petitioner's subsequent administrative appeal was unsuccessful.
Additionally, petitioner was charged in a misbehavior report dated March 9, 2020 with harassment, making threats, violating facility correspondence procedures and refusing a direct order. The disciplinary charges again resulted from petitioner sending threatening letters to an individual and, further, disregarding a correction lieutenant's repeated directives to refrain from sending correspondence containing obscene or threatening language. Following a hearing, petitioner was found guilty of all charges and a penalty – subsequently modified upon reconsideration – was imposed. Petitioner thereafter commenced this CPLR article 78 proceeding to challenge the two disciplinary determinations.
We confirm. Petitioner's claim that the respective hearings were neither timely commenced nor completed lacks merit. At the time of both incidents, petitioner already was confined to the facility's special housing unit. As such, the respective hearings were not required to be commenced within the seven-day period set forth in 7 NYCRR 251–5.1(a) (see Matter of Alvarez v. Fischer, 94 A.D.3d 1404, 1406, 942 N.Y.S.2d 711 [2012] ; Matter of Applewhite v. Goord, 45 A.D.3d 1112, 1112, 846 N.Y.S.2d 457 [2007], lv denied 10 N.Y.3d 711, 860 N.Y.S.2d 483, 890 N.E.2d 246 [2008] ). The record also reflects that the respective Hearing Officers obtained appropriate extensions and that each hearing was completed in compliance therewith. In any event, absent a showing of substantial prejudice, which petitioner has not demonstrated here, "the regulatory time limits are construed to be directory rather than mandatory" ( Matter of Caballero v. Annucci, 187 A.D.3d 1671, 1672, 130 N.Y.S.3d 420 [2020] [internal quotation marks and citation omitted]; see Matter of Anselmo v. Annucci, 176 A.D.3d 1283, 1284, 109 N.Y.S.3d 512 [2019] ). Petitioner's remaining procedural argument – that one of the letters at issue was seized in violation of departmental rules – is unavailing, as the author of the relevant misbehavior report testified that the letter was "opened pursuant to an authorized mail watch" ( Matter of Cochran v. Bezio, 70 A.D.3d 1161, 1162, 897 N.Y.S.2d 527 [2010] ; see Matter of Glover v. Fischer, 113 A.D.3d 976, 976–977, 978 N.Y.S.2d 914 [2014] ).
Turning to the merits, the detailed misbehavior report dated March 5, 2020, together with the testimony of its author and the related memorandum, petitioner's testimony and other documentary evidence, constitute substantial evidence to support the determination of guilt (see e.g. Matter of Washington v. Venettozzi, 186 A.D.3d 1866, 1867, 129 N.Y.S.3d 355 [2020] ; Matter of Peters v. Annucci, 177 A.D.3d 1055, 1056, 109 N.Y.S.3d 916 [2019] ; Matter of Woodward v. Annucci, 175 A.D.3d 785, 785–786, 105 N.Y.S.3d 724 [2019] ). Petitioner's claim that he was unaware that the recipient of the letters at issue appeared on his negative correspondence list presented a credibility determination for the Hearing Officer to resolve (see e.g. Matter of Wright v. Annucci, 190 A.D.3d 1249, 1249–1250, 136 N.Y.S.3d 814 [2021] ; Matter of Haigler v. Lilley, 173 A.D.3d 1597, 1598, 101 N.Y.S.3d 660 [2019], appeal dismissed and lv. denied 34 N.Y.3d 1090, 116 N.Y.S.3d 189, 139 N.E.3d 847 [2020] ).
We reach a similar conclusion regarding the misbehavior report dated March 9, 2020. The misbehavior report, the testimony of its author, petitioner's admission that he wrote the letter in question and the documentary evidence provide substantial evidence to support the finding of guilt (see e.g. Matter of Matthews v. Annucci, 175 A.D.3d 1713, 1713, 108 N.Y.S.3d 217 [2019] ; Matter of Ayala v. Fischer, 94 A.D.3d 1319, 1319, 942 N.Y.S.2d 692 [2012] ). Although petitioner is correct that the recipient of the offending letter was not on his negative correspondence list and that the order of protection in favor of the recipient had expired, the fact that petitioner was permitted to correspond with this individual did not mean that petitioner was allowed to threaten him – particularly after petitioner had been expressly instructed to refrain from such conduct. To the extent that petitioner contends that this misbehavior report was written in retaliation for a grievance that he had filed against its author, such claim presented a credibility issue for the Hearing Officer to resolve (see Matter of Kennedy v. Annucci, 185 A.D.3d 1371, 1371–1372, 128 N.Y.S.3d 693 [2020] ; Matter of Martin v. Rodriguez, 171 A.D.3d 1322, 1323, 95 N.Y.S.3d 909 [2019] ). Petitioner's remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit.
Egan Jr., J.P., Lynch, Clark, Pritzker and Reynolds Fitzgerald, JJ., concur.
ADJUDGED that the determinations are confirmed, without costs, and petition dismissed.