Opinion
521516.
04-14-2016
In the Matter of Eric MOORE, Petitioner, v. Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Eric Moore, Fallsburg, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondent.
Eric Moore, Fallsburg, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondent.
Before: LAHTINEN, J.P., EGAN Jr., DEVINE and CLARK, JJ.
Opinion 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 Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.
An investigation into a drug-trafficking operation revealed that petitioner, a prison inmate, had conspired to bring marihuana, synthetic marihuana and suboxone into the correctional facility and had used threats of violence to incentivize other inmates to distribute, and collect payment for, those drugs. As a consequence, petitioner was charged in a misbehavior report with making threats, soliciting, violent conduct, possessing intoxicants and drug possession. Following a tier III disciplinary hearing, petitioner was found guilty of all charges. On administrative appeal, the finding of guilt was affirmed. Petitioner thereafter commenced this CPLR article 78 proceeding.
Preliminarily, “the minor omissions contained in the hearing transcript have not rendered it so incomplete as to preclude meaningful review” (Matter of Robertson v. Fischer, 70 A.D.3d 1081, 1082, 892 N.Y.S.2d 921 [2010] ; see Matter of Johnson v. Rock, 64 A.D.3d 1096, 1096, 882 N.Y.S.2d 667 [2009], lv. denied 13 N.Y.3d 713, 2009 WL 4795402 [2009] ). Turning to the merits, the misbehavior report and hearing testimony, as well as the confidential testimony considered, provide substantial evidence to support the determination of guilt (see Matter of Welch v. Fischer, 121 A.D.3d 1139, 1140, 992 N.Y.S.2d 907 [2014] ; Matter of Carrero v. Fischer, 106 A.D.3d 1299, 1299, 964 N.Y.S.2d 917 [2013] ; Matter of Alvarado v. Commissioner of Special Hous. Unit, 93 A.D.3d 966, 967, 939 N.Y.S.2d 725 [2012] ). Petitioner's conflicting testimony presented credibility issues for the Hearing Officer to resolve (see Matter of Reese v. Fischer, 120 A.D.3d 1496, 1497, 992 N.Y.S.2d 450 [2014] ; Matter of Miller v. New York State Dept. of Correctional Servs., 295 A.D.2d 714, 714–715, 743 N.Y.S.2d 632 [2002] ).
The fact that petitioner was never found to be in possession of marihuana, synthetic marihuana or suboxone does not negate his guilt, as a violation of the rules occurred when petitioner conspired to bring these items into the facility (see Matter of Welch v. Fischer, 121 A.D.3d at 1140, 992 N.Y.S.2d 907 ). Finally, given that petitioner's misconduct was a continuing violation, it was not improper for the correction officer to use the date that his investigation was completed as the incident date on the misbehavior report (see Matter of Blake v. Goord, 35 A.D.3d 1016, 1017, 825 N.Y.S.2d 326 [2006] ; Matter of Kornegay v. Goord, 21 A.D.3d 1236, 1236–1237, 801 N.Y.S.2d 845 [2005] ). Petitioner's remaining contentions, to the extent that they are preserved for our review, have been examined and found to be without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.