Opinion
533149
12-16-2021
In the Matter of Edward MALLOY, Petitioner, v. Anthony RODRIGUEZ, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Edward Malloy, Comstock, petitioner pro se. Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Edward Malloy, Comstock, petitioner pro se.
Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Before: Garry, P.J., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ.
MEMORANDUM AND JUDGMENT
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 certain prison disciplinary rules.
During a frisk of incarcerated individuals on petitioner's cell block, an Office of Special Investigations K–9 dog alerted facility staff to the possible presence of drugs on petitioner. During an ensuing strip frisk of petitioner, he admitted to possessing contraband between his buttocks and then surrendered four glove fingers, three of which contained green leafy vegetation and one of which contained cash. The green leafy vegetation subsequently tested positive for synthetic cannabinoids. As a result of the foregoing, petitioner was charged in a misbehavior report with possessing drugs, using drugs and smuggling. Following a tier III disciplinary hearing, petitioner was found guilty of possessing drugs and smuggling and not guilty of using drugs. The charge of possessing drugs was ultimately dismissed upon administrative review, and the determination of guilt as to the remaining charge of smuggling was affirmed with a modified penalty.
Given that the petition appears to raise an issue of substantial evidence, the proceeding was properly transferred to this Court. However, petitioner has abandoned any such challenge by failing to raise it in his brief (see Matter of Sudler v. Annucci, 166 A.D.3d 1351, 1352 n., 86 N.Y.S.3d 686 [2018] ).
We confirm. Petitioner's procedural challenges to the disciplinary determination are without merit. The record reflects that valid extensions were obtained for adjournments due to the unavailability of a witness and the Hearing Officer and to afford petitioner time to review evidence that was given to him, and the hearing was therefore completed in a timely manner (see Matter of Morales v. Venettozzi, 186 A.D.3d 1871, 1872, 129 N.Y.S.3d 348 [2020] ; Matter of Partak v. Venettozzi, 175 A.D.3d 1633, 1634–1635, 109 N.Y.S.3d 481 [2019] ; Matter of Hyson v. Annucci, 171 A.D.3d 1339, 1340, 97 N.Y.S.3d 794 [2019] ). "In any event, compliance with the regulatory time limits contained in 7 NYCRR 251–5.1 is directory only[,] and there is no indication of any substantive prejudice to petitioner resulting from the delay" ( Matter of Anselmo v. Annucci, 176 A.D.3d 1283, 1284, 109 N.Y.S.3d 512 [2019] [internal quotation marks and citations omitted]; see Matter of Lopez v. Annucci, 171 A.D.3d 1326, 1327, 97 N.Y.S.3d 803 [2019] ).
We reject petitioner's contention that he was improperly denied certain documentary evidence. As to petitioner's request for body camera video footage of the incident, petitioner's assistant requested such footage but was informed by facility staff that such footage did not exist (see Matter of Caraway v. Annucci, 190 A.D.3d 1198, 1199, 141 N.Y.S.3d 166 [2021] ; Matter of Wimberly v. Annucci, 185 A.D.3d 1364, 1365, 126 N.Y.S.3d 432 [2020], lv denied 36 N.Y.3d 903, 2020 WL 7393392 [2020] ), and the correction officer and the investigator involved in the incident each testified that he was not wearing a body camera at the time of the incident. Nor was petitioner improperly denied access to the preliminary unusual incident report, as the record reflects that petitioner's assistant read the report to him (see Matter of Gaston v. Fischer, 109 A.D.3d 1063, 1064, 971 N.Y.S.2d 376 [2013] ). In any event, we have reviewed the report, "which does not contain any information exonerating petitioner of his guilt, nor has petitioner established that his ability to present a defense was prejudiced by not having received a copy of such report" ( id. ; see Matter of Phelps v. Fischer, 108 A.D.3d 1003, 1004, 969 N.Y.S.2d 262 [2013], appeal dismissed 22 N.Y.3d 1046, 981 N.Y.S.2d 353, 4 N.E.3d 364 [2014] ; Matter of Seymour v. Goord, 24 A.D.3d 831, 831–832, 804 N.Y.S.2d 498 [2005], lv denied 6 N.Y.3d 711, 814 N.Y.S.2d 600, 847 N.E.2d 1173 [2006] ). Finally, we find that the Hearing Officer's denial of petitioner's request to call his assistant as a witness was not error, as the proposed testimony would have been irrelevant to the charge of smuggling (see Matter of White v. Fischer, 108 A.D.3d 891, 892, 968 N.Y.S.2d 737 [2013], lv denied 22 N.Y.3d 853, 2013 WL 5658361 [2013] ; Matter of Mobayed v. Fischer, 89 A.D.3d 1266, 1267, 932 N.Y.S.2d 266 [2011] ). We have considered petitioner's remaining contentions and find that they are either unpreserved for our review or are lacking in merit.
As petitioner argues, it has long been recognized that "[t]he right to present the testimony of impartial witnesses and real evidence to corroborate his [or her] version of the facts is particularly crucial to an accused [incarcerated individual], who obviously faces a severe credibility problem with trying to disprove the charges of a prison guard" (Wolff v. McDonnell, 418 U.S. 539, 583, 94 S.Ct. 2963, 41 L.Ed.2d 935 [1974] [Marshall, J., concurring in part and dissenting in part] [emphasis added]). Petitioner questions why no video evidence was available; the record reveals that the officers had not been assigned body cameras while conducting the canine search of the cell block, and petitioner's request for the underlying procedures for use of such surveillance cameras during a "big frisk" was unanswered beyond the response that "not every job gets a body camera." We note petitioner's arguments but do not exercise our power to address them (see Matter of Pine v. Annucci, 200 A.D.3d 1270, 1271, 160 N.Y.S.3d 149 [2021] ).
Garry, P.J., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.