Opinion
2014-11-26
In the Matter of Jamal GRANT, Petitioner, v. David ROCK, as Superintendent of Upstate Correctional Facility, et al., Respondents.
Jamal Grant, Comstock, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Arnold of counsel), for respondents.
Jamal Grant, Comstock, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Arnold of counsel), for respondents.
Before: PETERS, P.J., STEIN, McCARTHY, LYNCH and CLARK, JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, entered in Albany County) to review a determination of respondent Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with possession of marihuana, smuggling and violating facility visitation procedures after he allegedly attempted to smuggle marihuana into a facility through the visit room. A correction officer observed a greasy substance on the back of petitioner's pants and shirt in the visiting room; the resulting strip frisk revealed a greasy substance on his rectal area. Subsequently, petitioner's visitors, who were seated at a table across from him, were asked to put their items in a bag. Upon searching the bagged items in the sergeant's office, a balloon containing a green leafy substance was found. The substance tested positive for marihuana. Following a tier III disciplinary hearing, petitioner was found guilty as charged, although the penalty was reduced. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, testimony of the investigating officers and related documentation, including the unusual incident report, drug test results and chain of evidence forms, provide substantial evidence to support the determination ( see Matter of Curry v. Fischer, 113 A.D.3d 981, 982, 980 N.Y.S.2d 165 [2014]; Matter of Clark v. Fischer, 111 A.D.3d 1045, 1045–1046, 974 N.Y.S.2d 668 [2013] ). Petitioner's denial of the charges and testimony to the contrary presented credibility issues for the Hearing Officer to resolve ( see Matter of Rodriguez v. Fisher, 120 A.D.3d 855, 855, 990 N.Y.S.2d 375 [2014] ). Moreover, his assertion that the Hearing Officer's actions in providing him with documents that he requested constituted improper investigation of the charges against him is patently meritless; a Hearing Officer may cure deficiencies in employee assistance by providing requested documents at the hearing ( see e.g. Matter of Lashway v. Fischer, 117 A.D.3d 1141, 1142, 984 N.Y.S.2d 655 [2014] ). Nor did the Hearing Officer err in denying petitioner's requested documents and witness testimony that were redundant or irrelevant ( see Matter of Gourdine v. Prack, 119 A.D.3d 1257, 1258, 989 N.Y.S.2d 408 [2014]; Matter of Shepherd v. Fischer, 111 A.D.3d 1213, 1213, 975 N.Y.S.2d 703 [2013], lv. denied22 N.Y.3d 864, 2014 WL 1243633 [2014] ). Petitioner's remaining arguments have been considered and found to be lacking in merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.