Opinion
No. CV-23-1098
03-14-2024
In the Matter of Alkim Mills, Petitioner, v. Anthony J. Annucci, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Kathy Manley, Selkirk, for petitioner. Letitia James, Attorney General, Albany (Owen Demuth of counsel), for respondent.
Calendar Date:February 9, 2024
Kathy Manley, Selkirk, for petitioner.
Letitia James, Attorney General, Albany (Owen Demuth of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Ceresia, McShan and Mackey, JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with refusing a direct order, engaging in violent conduct, assaulting staff and failing to comply with frisk procedures. According to the misbehavior report, a correction officer was conducting a suspicious cell search and ordered petitioner to step out of his cell for a pat frisk. Petitioner allegedly refused, put something in his mouth and swallowed it, then turned and struck the correction officer in the face. The misbehavior report further relates that the correction officer forced petitioner to the ground and a struggle ensued, during which petitioner grabbed the correction officer's throat and failed to comply with repeated commands to stop resisting before the correction officer was able to place petitioner in mechanical restraints. Following a tier III disciplinary hearing at which petitioner was represented by counsel, petitioner was found guilty of all charges. That determination was affirmed upon administrative appeal, and this CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, supporting documentation and testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of James v Venettozzi, 201 A.D.3d 1288, 1289-1290 [3d Dept 2022]; Matter of Estrada v Annucci, 199 A.D.3d 1145, 1145-1146 [3d Dept 2021]). Any inconsistencies in the evidence and/or testimony presented a credibility issue for the Hearing Officer to resolve (see Matter of Lightner v Venettozzi, 197 A.D.3d 1448, 1448-1449 [3d Dept 2021]; Matter of Randolph v Annucci, 190 A.D.3d 1196, 1197 [3d Dept 2021]).
Turning to petitioner's procedural challenges, petitioner contends that he was improperly denied evidence regarding the basis and authorization of the cell search. The charges resulted from petitioner's conduct prior to the execution of a cell search and, therefore, the basis for the search in the first instance is irrelevant (see Matter of Legette v Rodriguez, 213 A.D.3d 1066, 1067 [3d Dept 2023]; Matter of Macedonio v Annucci, 142 A.D.3d 1215, 1215 [3d Dept 2016]; Matter of Covington v Harford, 105 A.D.3d 1289, 1290 [3d Dept 2013], lv denied 21 N.Y.3d 862 [2013]). To the extent that petitioner asserts that he was improperly denied the right to question the correction officer involved in the incident about all prior grievances and complaints filed against him by other incarcerated individuals, such evidence was irrelevant to the charges (see Matter of Dawes v Selsky, 251 A.D.2d 912, 913 [3d Dept 1998], lv denied 92 N.Y.2d 812 [1998]; compare Matter of Perkins v Goord, 257 A.D.2d 821, 822 [3d Dept 1999]).
As petitioner has completed the period of segregated confinement imposed as a result of the determination, and there was no loss of any good time, any challenge thereto is moot. Finally, we are unpersuaded by petitioner's contention that the inaudible portions of the hearing transcript are so significant as to preclude meaningful review (see Matter of Olukotun-Williams v Gardner, 221 A.D.3d 1164, 1165 [3d Dept 2023]; Matter of Lundy v Annucci, 219 A.D.3d 1622, 1622 [3d Dept 2023]). Petitioner's remaining contentions have been reviewed and, to the extent they are preserved, are without merit.
Egan Jr., J.P., Lynch, Ceresia, McShan and Mackey, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.