Opinion
526884
01-31-2019
In the Matter of Eddie MOISE, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Eddie Moise, Elmira, petitioner pro se. Letitia James, Attorney General, Albany (Julie M. Sheridan of counsel), for respondent.
Eddie Moise, Elmira, petitioner pro se.
Letitia James, Attorney General, Albany (Julie M. Sheridan of counsel), for respondent.
Before: Garry, P.J., Clark, Devine, Aarons and Pritzker, JJ.
MEMORANDUM AND JUDGMENTProceeding 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.
After petitioner was ordered to undergo a strip frisk, a correction officer detected an unknown object in petitioner's mouth and issued multiple direct orders for petitioner to expel that object. Petitioner eventually complied, which led to the discovery of a green leafy substance wrapped in a latex glove finger. Subsequent drug testing identified the green leafy substance as synthetic marihuana. As a result, petitioner was charged in a misbehavior report with refusing a direct order, possessing a controlled substance, smuggling and violating frisk and search procedures. Following a tier III disciplinary hearing, petitioner was found not guilty of violating frisk and search procedures and guilty of refusing a direct order, possessing a controlled substance and smuggling. The determination was later affirmed on administrative appeal, and this CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, positive NARK II test results and related documentation (see generally 7 NYCRR 1010.8 [d] ), together with the unusual incident report and hearing testimony from the correction officer who conducted the frisk and the officer who tested the substance, provide substantial evidence to support the determination of guilt (see Matter of Young v. Rodriguez, 165 A.D.3d 1338, 1338, 85 N.Y.S.3d 603 [2018] ; Matter of Horton v. Annucci, 163 A.D.3d 1385, 1385, 80 N.Y.S.3d 744 [2018] ; Matter of Collins v. Annucci, 146 A.D.3d 1261, 1261, 45 N.Y.S.3d 699 [2017] ). Contrary to petitioner's contention, the information contained on the request for test of suspected contraband drugs form, which included the precise time when the substance was tested, and the testimony of the correction officer who collected and tested the sample established a proper chain of custody of the sample (see 7 NYCRR 1010.4 [a], [b]; Matter of Morales v. Venettozzi, 163 A.D.3d 1375, 1376, 77 N.Y.S.3d 902 [2018] ; Matter of Rodriguez v. Venettozzi, 156 A.D.3d 1029, 1030, 66 N.Y.S.3d 555 [2017] ).
Turning to petitioner's procedural contentions, his contention regarding the delay in conducting the hearing lacks merit, as the hearing was completed within the time frames set forth in the extensions that were necessary to, among other things, permit petitioner to receive his requested assistance and obtain testimony from requested witnesses (see Matter of Douglas v. Annucci, 153 A.D.3d 1014, 1015, 56 N.Y.S.3d 907 [2017] ; Matter of Vidal v. Annucci, 149 A.D.3d 1366, 1367, 51 N.Y.S.3d 262 [2017], lv denied 30 N.Y.3d 906, 2017 WL 5616056 [2017] ; Matter of Thousand v. Prack, 139 A.D.3d 1212, 1213, 32 N.Y.S.3d 348 [2016] ). "In any event, the time requirements [contained in 7 NYCRR 251–5.1 ] are directory, not mandatory, and an inmate must demonstrate prejudice as a result of any delay prior to the commencement of such a hearing" ( Matter of Ayuso v. Venettozzi, 159 A.D.3d 1208, 1209–1210, 74 N.Y.S.3d 104 [2018] [internal quotation marks and citations omitted]; see Matter of Shearer v. Annucci, 155 A.D.3d 1277, 1278, 65 N.Y.S.3d 249 [2017] ). That said, petitioner has not demonstrated any prejudice as a result of the brief delay. We further find that the Hearing Officer did not err in denying petitioner's request to call certain inmate witnesses to testify, as the requested witnesses were not present during the incident, and their potential testimony was not shown to be relevant to the charges (see Matter of Bradshaw v. Annucci, 163 A.D.3d 1380, 1381, 80 N.Y.S.3d 748 [2018] ; Matter of Cunningham v. Annucci, 153 A.D.3d 1491, 1492, 59 N.Y.S.3d 907 [2017] ; Matter of Tafari v. Fischer, 93 A.D.3d 1054, 1054–1055, 940 N.Y.S.2d 692 [2012], lv dismissed 19 N.Y.3d 1007, 951 N.Y.S.2d 704, 976 N.E.2d 231 [2012] ). Furthermore, neither the Hearing Officer's denial of the requested witnesses nor anything else in the record establishes that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Horton v. Annucci, 163 A.D.3d 1385, 1386, 80 N.Y.S.3d 744 [2018] ). Petitioner's remaining contentions, including that he received inadequate employee assistance, have been examined and found to be without merit.
Garry, P.J., Clark, Devine, Aarons and Pritzker, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.