Opinion
12-15-2016
In the Matter of Ramiel HARRIS, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Ramiel Harris, Auburn, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Brian Ginsberg of counsel), for respondent.
Ramiel Harris, Auburn, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Brian Ginsberg of counsel), for respondent.
Before: PETERS, P.J., GARRY, EGAN JR., DEVINE and AARONS, 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 respondent finding petitioner guilty of violating certain prison disciplinary rules.
During the course of an investigation, correction officers discovered that petitioner was involved in a plan to bring drugs and weapons into the correctional facility. As a result, petitioner was charged in two misbehavior reports with smuggling, conspiring to bring drugs and weapons into the facility, making a prohibited three-way telephone call and violating visitation and correspondence procedures. Following a tier III disciplinary hearing, petitioner was found guilty as charged. The determination was upheld on administrative appeal with a modified penalty, and this CPLR article 78 proceeding ensued.
We confirm. The misbehavior reports, hearing testimony, documentary evidence and confidential information provide substantial evidence supporting the determination of guilt (see Matter of Welch v. Fischer, 121 A.D.3d 1139, 1140, 992 N.Y.S.2d 907 [2014] ; Matter of Jones v. Prack, 114 A.D.3d 985, 985, 979 N.Y.S.2d 865 [2014] ). Contrary to petitioner's contention, the Hearing Officer conducted an independent assessment of reliability of the confidential information by interviewing the investigating correction officer and reviewing the confidential information (see Matter of Al–Matin v. Prack, 131 A.D.3d 1293, 1293, 16 N.Y.S.3d 96 [2015], lv. denied 26 N.Y.3d 913, 2015 WL 8805369 [2015] ; Matter of White v. Fischer, 121 A.D.3d 1478, 1479, 994 N.Y.S.2d 467 [2014] ). Further, the fact that petitioner was never found in possession of weapons or drugs does not negate his guilt, inasmuch as the rule violations occurred when he conspired to bring the items into the facility (see 7 NYCRR 270.2 [B][14][i], [xv]; 270.3[b]; Matter of Welch v. Fischer, 121 A.D.3d at 1140, 992 N.Y.S.2d 907 ; Matter of Sanders v. LaClair, 67 A.D.3d 1226, 1227, 890 N.Y.S.2d 136 [2009] ).
Turning to petitioner's procedural arguments, we find that the misbehavior reports adequately apprised petitioner of the charges against him in order for him to prepare a defense (see Matter of Chandler v. Annucci, 135 A.D.3d 1258, 1259, 23 N.Y.S.3d 494 [2016] ; Matter of Hobson v. Prack, 127 A.D.3d 1370, 1371, 4 N.Y.S.3d 560 [2015] ). We reject petitioner's contention that he was denied effective employee assistance, as the Hearing Officer remedied any deficiencies and petitioner has not demonstrated any prejudice (see Matter of McMaster v. Annucci, 138 A.D.3d 1289, 1290, 31 N.Y.S.3d 239 [2016], lv. denied 28 N.Y.3d 902, 2016 WL 4742537 [2016] ; Matter of Pooler v. Fischer, 107 A.D.3d 1256, 1257, 969 N.Y.S.2d 564 [2013], lv. denied 22 N.Y.3d 855, 2013 WL 6009632 [2013] ). Moreover, petitioner's right to call the former facility superintendent as a witness was not violated, as the Hearing Officer properly determined that the witness was unavailable (see Matter of Alicea v. Fischer, 89 A.D.3d 1245, 1246, 932 N.Y.S.2d 384 [2011], lv. denied 18 N.Y.3d 807, 2012 WL 489761 [2012] ; Matter of Lebron v. Goord, 6 A.D.3d 997, 998, 775 N.Y.S.2d 434 [2004] ). Finally, the written authorization and the confidential testimony of the officer conducting the investigation establish a proper basis for the mail watch (see Matter of Davis v. Prack, 100 A.D.3d 1177, 1178, 953 N.Y.S.2d 738 [2012], lv. dismissed 22 N.Y.3d 910, 975 N.Y.S.2d 730, 998 N.E.2d 393 [2013] ; Matter of Cochran v. Bezio, 70 A.D.3d 1161, 1162, 897 N.Y.S.2d 527 [2010] ). Petitioner's remaining claims are either unpreserved or lacking in merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.