Opinion
08-03-2017
In the Matter of Christopher MASON, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Christopher Mason, Romulus, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Christopher Mason, Romulus, 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 possessing a weapon and possessing an altered item after a search of his cell uncovered seven pieces of, what appeared to be, copper wire that had been sharpened to a point. Following a tier III disciplinary hearing, petitioner was found guilty of both charges and that determination was affirmed on administrative appeal with a modification of the penalty. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, unusual incident report, pictures of the weapons and testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Thompson v. Annucci, 145 A.D.3d 1303, 1304, 43 N.Y.S.3d 607 [2016] ; Matter of Baysden v. Annucci, 140 A.D.3d 1519, 1519, 35 N.Y.S.3d 517 [2016] ). Petitioner's assertion that he was unaware that the weapons were in his cell and that the misbehavior report was in retaliation for grievances filed against a correction officer presented credibility issues for the Hearing Officer to resolve (see Matter of Marhone v. Schuck, 142 A.D.3d 1232, 1232, 37 N.Y.S.3d 648 [2016] ).
To the extent that petitioner contends that the Hearing Officer did not independently assess the credibility of the confidential information that led to the search of his cell, the confidential information was inconsequential to the determination of guilt, which was based upon the actual discovery of the weapons (see Matter of Hill v. Venettozzi, 144 A.D.3d 1295, 1296, 40 N.Y.S.3d 297 [2016] ; Matter of Marhone v. Schuck, 142 A.D.3d at 1233, 37 N.Y.S.3d 648 ). Further, contrary to petitioner's assertion, he was not improperly denied the opportunity to observe the cell search in violation of Department of Corrections and Community Supervision Directive No. 4910 inasmuch as he acknowledges that he was not removed from his cell but, rather, was at the law library when the cell search was conducted (see Matter of Bartello v. Annucci, 142 A.D.3d 1194, 1194, 37 N.Y.S.3d 463 [2016] ). We have reviewed petitioner's remaining contentions, including his challenges to the adequacy of his employee assistance and alleged inconsistencies between the misbehavior report and unusual incident report, and find them to be without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
PETERS, P.J., GARRY, LYNCH, CLARK and AARONS, JJ., concur.