Opinion
09-22-2016
In the Matter of Jason GANO, Petitioner, v. Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Jason Gano, Moravia, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Jason Gano, Moravia, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: PETERS, P.J., EGAN JR., LYNCH, DEVINE and CLARK, 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 finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, activated a walk-through metal detector, prompting a frisk and search that led to the discovery and seizure of two razor blades taped together and hidden in the hem of petitioner's coat. Thereafter, petitioner was charged in a misbehavior report with possessing a weapon, possessing an altered item and smuggling. Following a tier III disciplinary hearing, petitioner was found guilty of the three charges, and the determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, the photograph of the razors and testimony of petitioner and the involved correction staff provide substantial evidence to support the determination of guilt (see Matter of Smith v. Prack, 98 A.D.3d 780, 781, 949 N.Y.S.2d 806 [2012] ; Matter of Hughes v. Bezio, 84 A.D.3d 1598, 1598, 924 N.Y.S.2d 298 [2011] ). Petitioner's claims that he did not know that the razors were in the hem of his jacket and that another inmate planted those razors there created credibility issues for the Hearing Officer to resolve (see Matter of Glod v. Fischer, 98 A.D.3d 1173, 1174, 950 N.Y.S.2d 820 [2012] ; Matter of Kearney v. Fischer, 51 A.D.3d 1185, 1186, 856 N.Y.S.2d 740 [2008] ). We find no merit to petitioner's claim that the incident would not have happened if prison staff had better secured the razors and searched the facility upon discovering that they were missing (see Matter of Boddie v. Selsky, 18 A.D.3d 996, 997, 794 N.Y.S.2d 693 [2005] ). Finally, contrary to petitioner's contention that he was improperly denied the right to call witnesses on his behalf, the record reflects that the requested witnesses had not previously agreed to testify and each signed a witness refusal form indicating plausible reasons for their refusal to testify (see Matter of Chandler v. Annucci, 135 A.D.3d 1258, 1259, 23 N.Y.S.3d 494 [2016] ; Matter of Broadie v. Annucci, 131 A.D.3d 1324, 1325, 16 N.Y.S.3d 338 [2015] ). Petitioner's remaining contentions have been examined and found to be lacking in merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.