Opinion
2011-11-23
In the Matter of Gustavo MORALES, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Gustavo Morales, Pine City, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Gustavo Morales, Pine City, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: PETERS, J.P., SPAIN, MALONE JR., McCARTHY and GARRY, JJ.
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 which found petitioner guilty of violating certain prison disciplinary rules.
After a search of petitioner's prison cell revealed a plastic tube attached to a bag of yellow liquid that was believed to be urine, he was removed to the special housing unit. A continuation of the search revealed a scalpel, several bags of a green leafy substance, a white powder and a paper clip with foil attached. He was thereafter charged in a misbehavior report with possession of a weapon, possession of contraband, smuggling and committing an unhygienic act. When the green substance tested positive for marihuana, petitioner was subsequently served with a second misbehavior report charging him with drug possession. A tier III disciplinary hearing was conducted to address both reports, after which petitioner was found guilty of possessing a weapon, contraband and drugs. That determination was upheld on administrative appeal, after which petitioner commenced this CPLR article 78 proceeding.
Because the issue of substantial evidence was not raised in the petition, this proceeding appears to have been improperly transferred to this Court ( see Matter of Barca v. Fischer, 80 A.D.3d 1038, 1038 n., 915 N.Y.S.2d 392 [2011], lv. denied 16 N.Y.3d 711, 2011 WL 1643302 [2011]; Matter of Davis v. State, 75 A.D.3d 1022, 1022 n., 907 N.Y.S.2d 341 [2010] ). However, in the interest of judicial economy, we retain jurisdiction and address the merits.
Petitioner's sole contention on this appeal is that he was impermissibly denied the right to observe that part of the search that took place after he was removed to the special housing unit. Respondent argues that this issue is unpreserved for this Court's review due to petitioner's failure to raise it at the disciplinary hearing. However, lack of preservation that arises from the failure to raise an issue at a disciplinary hearing should be confined to those instances in which the Hearing Officer has the opportunity to correct the deficiency if so raised ( see e.g. Matter of Hamilton v. Bezio, 76 A.D.3d 1125, 1126, 908 N.Y.S.2d 141 [2010]; Matter of Bosquet v. Bezio, 69 A.D.3d 1257, 1258, 895 N.Y.S.2d 550 [2010]; Matter of Christian v. Goord, 20 A.D.3d 862, 863, 798 N.Y.S.2d 807 [2005] ). Where the alleged error arises from a defect that appears on the face of the record, raising the issue in an administrative appeal gives the administrative body adequate opportunity to correct the error, thus preserving the issue for judicial review ( see Matter of Quinones v. Fischer, 67 A.D.3d 1285, 1286, 888 N.Y.S.2d 806 [2009]; Matter of Cayenne v. Goord, 16 A.D.3d 782, 783, 790 N.Y.S.2d 762 [2005] ). Thus, we find petitioner adequately preserved the issue by raising it in his administrative appeal.
Turning to the merits, pursuant to Department of Corrections and Community Supervision Directive No. 4910(V)(C)(1), an inmate is permitted to observe a search of his or her cell when he or she is removed for the purpose of conducting the search unless a determination is made that such presence endangers the safety or security of the facility ( see Matter of Griffin v. Selsky, 60 A.D.3d 1247, 1248, 878 N.Y.S.2d 204 [2009]; Matter of Vines v. Goord, 19 A.D.3d 951, 952, 798 N.Y.S.2d 526 [2005]; Matter of McKethan v. Selsky, 297 A.D.2d 840, 841, 747 N.Y.S.2d 127 [2002] ). Here, the record demonstrates that petitioner was impermissibly removed to the special housing unit after the discovery of the plastic tube and the bag with yellow liquid, without any determination having been made that he was a security risk. As there was no showing that the suspected liquid was urine and, thus, the charge of committing an unhygienic act was dismissed, all of the charges for which petitioner was found guilty resulted from the search subsequent to his removal. Inasmuch as respondent is required to adhere to his own regulations, the determination of guilt must be annulled ( see Matter of Johnson v. Goord, 288 A.D.2d 525, 526, 731 N.Y.S.2d 918 [2001]; Matter of Holloway v. Lacy, 263 A.D.2d 740, 741–742, 695 N.Y.S.2d 148 [1999]; Matter of Gonzalez v. Wronski, 247 A.D.2d 767, 768, 669 N.Y.S.2d 421 [1998] ).
ADJUDGED that the determination is annulled, without costs, petition granted and respondent is directed to expunge all references thereto from petitioner's institutional record and to reimburse the mandatory surcharge to petitioner.