Opinion
04-21-2016
In the Matter of Richard LACEY, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Richard Lacey, Auburn, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Richard Lacey, Auburn, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco 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 respondent finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with possession of a weapon and possession of an altered item after a search of his cell uncovered a shank fashioned out of a toothbrush, paper clip and shoelace. Following a tier III disciplinary hearing, petitioner was found guilty of both charges and that determination was affirmed upon administrative appeal. This CPLR article 78 proceeding ensued.
Contrary to petitioner's claim, the matter was properly transferred to this Court as the challenges in the petition raise a question of substantial evidence (see CPLR 7804[g] ). To that end, the misbehavior report, picture of the weapon, confidential documentation and inferences to be drawn therefrom provide substantial evidence to support the determination of guilt (see Matter of Diaz v. Prack, 127 A.D.3d 1489, 1490, 6 N.Y.S.3d 327 [2015] ; Matter of Crook v. Fischer, 91 A.D.3d 1076, 1076, 937 N.Y.S.2d 379 [2012] ). Petitioner's contention that the weapon was planted created a credibility issue for the Hearing Officer to resolve (see Matter of Johnson v. Fischer, 109 A.D.3d 1070, 1071, 971 N.Y.S.2d 590 [2013] ). Any confidential information that prompted the search of petitioner's cell did not need to be assessed by the Hearing Officer as it did not form the basis for the determination of guilt (see Matter of Douglas v. Fischer, 126 A.D.3d 1244, 1245, 3 N.Y.S.3d 654 [2015], lv. denied 26 N.Y.3d 904, 2015 WL 5254842 [2015] ; Matter of Garcia v. Fischer, 308 A.D.2d 609, 610, 764 N.Y.S.2d 217 [2003] ) and petitioner was not entitled to access the other confidential information considered in connection with the charges (see Matter of Hall v. Fischer, 101 A.D.3d 1309, 1310, 954 N.Y.S.2d 922 [2012] ). We have reviewed petitioner's remaining contentions and, to the extent that they are preserved for our review, we find them to be without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
LAHTINEN, J.P., McCARTHY, ROSE and DEVINE, JJ., concur.