Opinion
527389
10-03-2019
In the Matter of Wayne MCFARLANE, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Wayne McFarlane, Malone, petitioner pro se. Letitia James, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondent.
Wayne McFarlane, Malone, petitioner pro se.
Letitia James, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Clark, Devine and Rumsey, 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 respondent finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with smuggling and possessing drugs. The charges were based upon a correction officer observing petitioner, who was placed on contraband watch following a strip search, mixing something into his food. The correction officer then retrieved the food tray and found plastic bags, as well as a green leafy substance and brown chunky substance, mixed into the food. The green and brown substances subsequently tested positive for marihuana and heroin, respectively. Following a tier III disciplinary hearing, petitioner was found guilty of the charges and, on administrative appeal, the determination was affirmed. This Court subsequently annulled that determination, finding that petitioner was improperly denied a relevant defense witness who, according to petitioner, allegedly overheard a conversation between petitioner and the author of the misbehavior report establishing that the author lied about seeing petitioner place drugs on the food tray, and directed a rehearing ( Matter of McFarlane v. Annucci, 145 A.D.3d 1312, 43 N.Y.S.3d 608 [2016] ). Following a rehearing, petitioner was again found guilty of both charges. That determination was affirmed upon administrative appeal. Thereafter, petitioner commenced this CPLR article 78 proceeding.
Initially, we are unpersuaded by petitioner's contention that gaps in the hearing transcript are so significant as to preclude meaningful review (see Matter of Liggan v. Annucci , 171 A.D.3d 1325, 1326, 97 N.Y.S.3d 805 [2019] ; Matter of Williams v. Keyser , 171 A.D.3d 1334, 1336, 97 N.Y.S.3d 797 [2019] ). Turning to the merits, petitioner contends that the part of the determination finding him guilty of possessing drugs is not supported by substantial evidence because no documents were provided nor testimony adduced concerning the statement of scientific principles and validity of the testing materials and procedures used. Upon our review of the record, we agree. When positive results of a test of suspected contraband drugs are used as evidence at a disciplinary hearing, 7 NYCRR 1010.5(d) directs that certain documents, including "a statement of the scientific princip[les] and validity of the testing materials and procedures used," be included in the record. This required document does not appear in the record, nor was it provided to petitioner despite his specific request and objections. Further, testimony from the testing officer offered no evidence of the procedures used. In view of the foregoing, that part of the determination finding petitioner guilty of possessing drugs is not supported by substantial evidence and must be annulled (see Matter of Booker v. Ercole , 72 A.D.3d 1369, 1370, 901 N.Y.S.2d 719 [2010], appeal dismissed 26 N.Y.3d 1133, 27 N.Y.S.3d 496, 47 N.E.3d 776 [2016] ; Matter of Cespedes v. New York State Dept. of Correctional Servs. , 68 A.D.3d 1429, 1430, 892 N.Y.S.2d 229 [2009] ; cf. Matter of Shepherd v. Fischer, 63 A.D.3d 1473, 1473, 884 N.Y.S.2d 777 [2009] ). Because a loss of good time was imposed, the matter must be remitted for a redetermination of the penalty relative to the remaining charge (see Matter of Allah v. Venettozzi , 173 A.D.3d 1591, 1591, 101 N.Y.S.3d 662 [2019] ).
As to the smuggling charge, the requirements of 7 NYCRR 1010.5(d) are not applicable (see Matter of Shamberger v. Annucci , 168 A.D.3d 1336, 1337, 93 N.Y.S.3d 715 [2019] ; Matter of Adams v. Annucci , 160 A.D.3d 1331, 1332, 75 N.Y.S.3d 343 [2018] ). To that end, we find that the determination of guilt as to smuggling is supported by substantial evidence consisting of the misbehavior report indicating that plastic bags and other substances were found mixed in petitioner's food, the related documentation, the DVD evidence and the testimony at the hearing (see Matter of Phillips v. Annucci, 160 A.D.3d 1308, 1308–1309, 75 N.Y.S.3d 354 [2018] ; Matter of Shearer v. Annucci , 155 A.D.3d 1277, 1277, 65 N.Y.S.3d 249 [2017] ).
Petitioner's contention that he was improperly denied the right to call an inmate as a defense witness is without merit. Contrary to petitioner's contention, the record reflects that the requested witness executed a witness refusal, specifically noting that he did not want to testify, and the Hearing Officer read that form to petitioner at the hearing. Further inquiry by the Hearing Officer was not required (see Matter of Cortorreal v. Annucci , 28 N.Y.3d 54, 59, 41 N.Y.S.3d 723, 64 N.E.3d 952 [2016] ; Matter of Harriott v. Annucci , 170 A.D.3d 1294, 1296, 95 N.Y.S.3d 614 [2019] ; Matter of Ballard v. Annucci , 156 A.D.3d 1013, 1015, 66 N.Y.S.3d 84 [2017] ). We have reviewed petitioner's remaining contentions, including his numerous procedural challenges, and find them to be without merit.
Garry, P.J., Egan Jr., Clark, Devine and Rumsey, JJ., concur.
ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of possessing drugs and imposed a penalty; petition granted to that extent, respondent is directed to expunge all references to this charge from petitioner's institutional record and matter remitted to respondent for an administrative redetermination of the penalty imposed on the remaining violation; and, as so modified, confirmed.