Opinion
528926
09-19-2019
In the Matter of Anthony MATTHEWS, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Anthony Matthews, Auburn, petitioner pro se. Letitia James, Attorney General, Albany (Frank Brady of counsel), for respondent.
Anthony Matthews, Auburn, petitioner pro se.
Letitia James, Attorney General, Albany (Frank Brady of counsel), for respondent.
Before: Garry, P.J., Lynch, Clark, Devine and Pritzker, 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 responding finding petitioner guilty of violating a prison disciplinary rule.
During the course of an authorized strip frisk, an unknown object was observed in petitioner's rectal area, and electronic metal detectors subsequently indicated the presence of metal inside of petitioner's body. Petitioner was placed on contraband watch and, when he was escorted out of the observation cell to undergo an abdominal X ray, a frisk of that cell led to the discovery of a one-inch by half-inch ceramic scalpel blade, with a handle wrapped in tape, placed under the cell door to the left of the hinges. As a result of this incident, petitioner was charged in a misbehavior report with possessing a weapon. Following a tier III disciplinary hearing, petitioner was found guilty of the charge, and the determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, hearing testimony and related documentary evidence provide substantial evidence to support finding petitioner guilty of possessing a weapon (see Matter of Tavarez v. Annucci , 134 A.D.3d 1374, 1374, 21 N.Y.S.3d 767 [2015] ; Matter of Hammond v. Selsky , 28 A.D.3d 1000, 1000, 812 N.Y.S.2d 720 [2006] ; Matter of Tarbell v. Goord , 263 A.D.2d 563, 563, 693 N.Y.S.2d 262 [1999] ). Petitioner's claim that he did not possess the weapon, but that it was planted, presented a credibility issue for the Hearing Officer to resolve (see Matter of Canalas Sanchez v. Annucci , 126 A.D.3d 1194, 1194–1195, 3 N.Y.S.3d 631 [2015] ; Matter of Quezada v. Fischer , 85 A.D.3d 1462, 1462, 925 N.Y.S.2d 726 [2011] ; Matter of Perez v. Fischer , 69 A.D.3d 1279, 1279–1280, 895 N.Y.S.2d 541 [2010] ). Moreover, testimony at the hearing reflects that the observation cell was searched prior to petitioner's admission into that cell, and, in any event, " ‘it was his own responsibility to make sure that no unauthorized items were present in his cell’ " ( Matter of Ballard v. Annucci , 170 A.D.3d 1298, 1300, 95 N.Y.S.3d 611 [2019], quoting Matter of Johnson v. Barkley , 260 A.D.2d 882, 882–883, 689 N.Y.S.2d 537 [1999] ).
Turning to petitioner's procedural contentions, petitioner argues that he was deprived of his right to call three relevant witnesses. This contention, however, is unpreserved as he failed to make a request for one of the witnesses, withdrew his request for another one of the witnesses and did not pursue his request to have the deputy superintendent for security testify when asked by the Hearing Officer if he had any more witness requests (see Matter of Rodriguez v. Lee , 162 A.D.3d 1453, 1454, 80 N.Y.S.3d 501 [2018] ; Matter of Wilson v. Annucci , 148 A.D.3d 1281, 1282, 49 N.Y.S.3d 199 [2017] ; Matter of Hayes v. Fischer , 73 A.D.3d 1360, 1361, 899 N.Y.S.2d 915 [2010] ). Nor did petitioner lodge an objection when the deputy superintendent for security was not called as a witness (see Matter of Rodriguez v. Lee , 162 A.D.3d at 1454, 80 N.Y.S.3d 501 ; Matter of Hayes v. Fischer , 73 A.D.3d at 1361, 899 N.Y.S.2d 915 ; Matter of Brown v. Selsky , 49 A.D.3d 1108, 1108, 853 N.Y.S.2d 740 [2008] ). As to the remaining procedural challenges, petitioner was not improperly denied documentary evidence in the form of certain videotapes that he requested, given that the requested videotapes either did not exist (see Matter of Reyes v. Keyser , 150 A.D.3d 1502, 1505, 55 N.Y.S.3d 495 [2017] ; Matter of Benitez v. Annucci , 139 A.D.3d 1215, 1216, 29 N.Y.S.3d 831 [2016] ) or did not depict the incident in question and were, therefore, irrelevant (see Matter of Jones v. Annucci , 166 A.D.3d 1174, 1175–1176, 87 N.Y.S.3d 723 [2018] ; Matter of Ocasio v. Bullis , 162 A.D.3d 1424, 1425, 80 N.Y.S.3d 505 [2018] ). In addition, petitioner has failed to establish that he was prejudiced by any of the alleged inadequacies of his employee assistant (see Matter of Davis v. Annucci , 155 A.D.3d 1191, 1192, 63 N.Y.S.3d 257 [2017] ). Finally, the record reflects that the hearing was held in a fair and impartial manner, and there is nothing to indicate that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of White v. Annucci , 170 A.D.3d 1372, 1373, 93 N.Y.S.3d 920 [2019] ). To the extent that petitioner's remaining contentions are properly before us, they have been examined and found to be lacking in merit.
Garry, P.J., Lynch, Clark, Devine and Pritzker, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.