Opinion
524310.
11-02-2017
In the Matter of Javon GONZALEZ, Petitioner, v. Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Javon Gonzalez, Pine City, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Jeffrey W. Lang of counsel), for respondent.
Javon Gonzalez, Pine City, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Jeffrey W. Lang of counsel), for respondent.
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.
During an authorized search of petitioner's cell, a correction officer found three pages containing gang-related references and terms. As a result, petitioner was charged in a misbehavior report with possessing gang-related material. Following a tier III disciplinary hearing, he was found guilty of that charge. The determination was later affirmed on administrative appeal, and this CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, related documentation and documents that were confiscated, together with the hearing testimony of, among others, the correction officer who authored the report and was trained in identifying gang-related materials, provide substantial evidence supporting the determination of guilt (see Matter of Patterson v. Venettozzi, 140 A.D.3d 1562, 1563, 33 N.Y.S.3d 786 [2016] ; Matter of Telesford v. Annucci, 131 A.D.3d 753, 753, 13 N.Y.S.3d 917 [2015] ; Matter of Harvey v. Bradt, 81 A.D.3d 1003, 1003, 921 N.Y.S.2d 335 [2011] ). Petitioner's claim that the misbehavior report was written in retaliation for prior grievances that he had filed, as well as his claim that the confiscated materials did not belong to him and were planted in his cell, presented credibility issues for the Hearing Officer to resolve (see Matter of McMaster v. Annucci, 138 A.D.3d 1289, 1289, 31 N.Y.S.3d 239 [2016], lv. denied 28 N.Y.3d 902, 2016 WL 4742537 [2016] ; Matter of Wheeler–Whichard v. Fischer, 69 A.D.3d 1286, 1286, 896 N.Y.S.2d 483 [2010] ; Matter of Glover v. Fischer, 68 A.D.3d 1404, 1404, 891 N.Y.S.2d 202 [2009] ).
Turning to petitioner's procedural contentions, we find that the Hearing Officer was properly authorized pursuant to 7 NYCRR 254.1 to conduct the hearing, and petitioner's claim that the Hearing Officer performed out-of-title work by conducting the hearing is also without merit (see Matter
of Ramos v. Venettozzi, 131 A.D.3d 1309, 1310, 16 N.Y.S.3d 354 [2015], lv. denied 26 N.Y.3d 913, 2015 WL 7433122 [2015] ; Matter of Tevault v. Prack, 131 A.D.3d 776, 776, 14 N.Y.S.3d 823 [2015] ). To the extent that there was a failure to record the search of petitioner's cell in the relevant log book, such a technical defect does not require that the determination be annulled where, as here, the record evidence and testimony at the hearing adequately established that the results of the search were noted in the misbehavior report, contraband receipt form and search contraband report (see Matter of Batts v. Fischer, 60 A.D.3d 1129, 1129–1130, 874 N.Y.S.2d 334 [2009] ; Matter of Chapman v. Goord, 49 A.D.3d 944, 944, 853 N.Y.S.2d 212 [2008] ). We have previously rejected petitioner's claim that he did not have sufficient notice of disciplinary rule 105.13 prohibiting gang-related activities and see no reason to revisit that issue (see Matter of Gonzalez v. Annucci, 149 A.D.3d 1455, 1456, 52 N.Y.S.3d 738 [2017] ; 7 NYCRR 270.2 [B] [6][iv] ). Finally, upon reviewing the record, we find no indication that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Medina v. Annucci, 141 A.D.3d 1052, 1053, 35 N.Y.S.3d 663 [2016] ). Petitioner's remaining contentions, including his claims that he was improperly denied witnesses and certain documentation, either have not been preserved or are lacking in merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
McCARTHY, J.P., GARRY, ROSE, DEVINE and AARONS, JJ., concur.