Opinion
2011-08-4
In the Matter of Jason MACHICOTE, Petitioner,v.Norman R. BEZIO, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Jason Machicote, Romulus, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Jason Machicote, Romulus, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff 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 Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.
After petitioner, a prison inmate, was observed acting furtively and drinking a large quantity of water during a visit with family, he was placed on contraband watch. Thereafter, a search of petitioner's feces revealed pieces of balloon and cellophane and he was charged in a misbehavior report with possessing narcotic paraphernalia and contraband, smuggling and violating visiting procedures. Petitioner was found guilty of all charges following a tier III disciplinary hearing and that determination was affirmed administratively. He then commenced this CPLR article 78 proceeding.
We confirm. The detailed misbehavior report, supporting documentation, pictures of the items found pursuant to the search and testimony of the correction officers involved provide substantial evidence to support the determination of guilt ( see Matter of Hayes v. Fischer, 78 A.D.3d 1396, 1396–1397, 911 N.Y.S.2d 251 [2010]; Matter of Tafari v. Selsky, 77 A.D.3d 991, 991, 908 N.Y.S.2d 748 [2010], lv. denied 16 N.Y.3d 706, 2011 WL 652598 [2011] ). Petitioner's denials and the affidavit from his prisoner witness raised credibility issues for the Hearing Officer to resolve ( see Matter of Genis v. New York State Dept. of Correctional Servs., 80 A.D.3d 1032, 1033, 915 N.Y.S.2d 387 [2011]; Matter of Lovett v. Smith, 80 A.D.3d 1039, 1040, 915 N.Y.S.2d 706 [2011] ).
Turning to petitioner's procedural contentions, we find no support for his allegation that significant portions of the hearing were not recorded. Although there were minor gaps in the transcript, they do not prevent meaningful review ( see Matter of Weems v. Fischer, 82 A.D.3d 1454, 1456, 919 N.Y.S.2d 548 [2011]; Matter of Anthony v. Fischer, 81 A.D.3d 1027, 1028, 916 N.Y.S.2d 280 [2011] ). Petitioner's claim that he received inadequate assistance based on his assistant's alleged failure to locate inmates who were under watch at the same time is unpreserved for our review by his failure to note that request on his assistant form or bring the issue to light during the hearing ( see Matter of Tafari v. Selsky, 77 A.D.3d 992, 992–993, 908 N.Y.S.2d 751 [2010], lv. dismissed 16 N.Y.3d 783, 919 N.Y.S.2d 506, 944 N.E.2d 1146 [2011] ). Finally, our review of the record demonstrates that the determination of guilt was founded upon the evidence presented at the hearing, rather than any alleged hearing officer bias ( see Matter of Weems v. Fischer, 82 A.D.3d at 1456, 919 N.Y.S.2d 548; Matter of Mayo v. Fischer, 82 A.D.3d 1421, 1422, 918 N.Y.S.2d 676 [2011], lv. denied 17 N.Y.3d 702, 2011 WL 2237041 [June 9, 2011] ).
Petitioner's remaining contentions have been examined and found to be either unpreserved or without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.