From Casetext: Smarter Legal Research

Matter of Adams v. Bennett

Appellate Division of the Supreme Court of New York, Third Department
Jan 25, 2001
279 A.D.2d 919 (N.Y. App. Div. 2001)

Opinion

January 25, 2001.

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.

James Adams, Malone, petitioner in person.

Eliot Spitzer, Attorney-General (Peter G. Crary of counsel), Albany, for respondents.

Before: Mercure, J.P., Peters, Carpinello, Mugglin and Lahtinen, JJ.


MEMORANDUM AND JUDGMENT

When petitioner's visit with his wife pursuant to the family reunion program (hereinafter FRP) was terminated and a search of the FRP unit produced a substance that later tested positive for marihuana, petitioner was charged with violating prison disciplinary rules prohibiting the possession of a controlled substance and requiring compliance with FRP procedures. After a tier III hearing, petitioner was found guilty of the charges. We reject petitioner's claim that he was denied the right to call two witnesses. The Hearing Officer concluded that the testimony of the two witnesses would not be relevant, a conclusion supported by the record, and therefore we find no error in the denial of petitioner's request (see, Matter of James v. Goord, 261 A.D.2d 733). Inasmuch as the correction officer who conducted the search testified that he retained possession of the substance from the time of discovery until he turned it over to the officer who tested it and the documentary evidence confirms delivery to the testing officer, there is no merit to petitioner's claim of a break in the chain of custody (see, Matter of Quartieri v. Goord, 251 A.D.2d 849).

Although the Hearing Officer inadvertently taped over a portion of the testimony of one witness, we reject petitioner's contention that the Hearing Officer erred in refusing to dismiss the charges. Inasmuch as the Hearing Officer offered to recall the witness in an effort to reconstruct the testimony, petitioner received all the consideration to which he was entitled (see, Matter of McDonald v. Coughlin, 217 A.D.2d 770). Relying on Department of Correctional Services Directive 4910, petitioner claims that he was deprived of the right to be present during the search of the FRP unit. The directive has no application where, as here, the area searched was not a general confinement housing unit (see, Matter of Motzer v. Goord, 273 A.D.2d 559). The determination is supported by substantial evidence and petitioner's arguments provide no basis to disturb it.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.


Summaries of

Matter of Adams v. Bennett

Appellate Division of the Supreme Court of New York, Third Department
Jan 25, 2001
279 A.D.2d 919 (N.Y. App. Div. 2001)
Case details for

Matter of Adams v. Bennett

Case Details

Full title:IN THE MATTER OF JAMES ADAMS, PETITIONER, v. FLOYD BENNETT, AS…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Jan 25, 2001

Citations

279 A.D.2d 919 (N.Y. App. Div. 2001)
719 N.Y.S.2d 618

Citing Cases

Johnson v. Goord

on the ground that the search of his cell violated the terms of Department of Correctional Services Directive…

In the Matter of Torres v. Selsky

In any event, were we to consider these arguments, we would find no reason to disturb the determination.…