Opinion
518694
11-13-2014
In the Matter of Anthony ORTEGA, Petitioner, v. Anthony ANNUCCI, as Commissioner of Corrections and Community Supervision, Respondent.
Anthony Ortega, New York City, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Anthony Ortega, New York City, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
BEFORE: PETERS, P.J., LAHTINEN, EGAN JR., LYNCH and DEVINE, 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 respondent which found petitioner guilty of violating a prison disciplinary rule.
Petitioner, an inmate, was charged with losing state property after he reported that certain items were missing from his locker, including his state-issued razor blade. Following a tier III disciplinary hearing, petitioner was found guilty and a penalty was imposed. The determination was affirmed upon administrative appeal, with a later penalty reduction, and petitioner commenced this CPLR article 78 proceeding.
We confirm. The “factually specific” misbehavior report was authored by the correction officer to whom petitioner reported the items missing and who searched petitioner's locker and confirmed that they were missing (Matter of Amaker v. Selsky, 43 A.D.3d 547, 547, 840 N.Y.S.2d 239 [2007], lv. denied 9 N.Y.3d 814, 848 N.Y.S.2d 25, 878 N.E.2d 609 [2007] ; see Matter of Hernandez v. Goord, 37 A.D.3d 893, 894, 830 N.Y.S.2d 364 [2007] ). We find that the report was, standing alone, “sufficiently relevant and probative” to constitute substantial evidence of the charged misconduct (Matter of Perez v. Wilmot, 67 N.Y.2d 615, 616, 499 N.Y.S.2d 659, 490 N.E.2d 526 [1986] ; see Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 [1990] ; Matter
of Bermudez v. Fischer, 107 A.D.3d 1269, 1270, 967 N.Y.S.2d 249 [2013] ). Petitioner's testimony, and that of his inmate witness, that his locker had been broken into created a credibility question for the Hearing Officer to resolve (see Matter of Foster v. Coughlin, 76 N.Y.2d at 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 ; Matter of Pulecio v. Fischer, 109 A.D.3d 1068, 1069, 971 N.Y.S.2d 380 [2013], lv. denied 22 N.Y.3d 858, 2014 WL 112692 [2014] ; Matter of Hoskins v. Fischer, 49 A.D.3d 1009, 1009–1010, 853 N.Y.S.2d 422 [2008] ). Contrary to petitioner's claim, the written statement setting forth the evidence relied upon and the reason for the penalty adequately complied with the regulatory requirements and was provided to him at the hearing (see 7 NYCRR 254.7 [a][5]; Matter of Boynton v. Fischer, 105 A.D.3d 1231, 1231, 962 N.Y.S.2d 822 [2013] ). Finally, the Hearing Officer did not shift the burden of proof or exhibit bias toward petitioner when he noted the absence of proof that razor blades recovered from petitioner's housing unit days later belonged to him; even if one of the recovered blades was petitioner's lost blade, this would not undermine his responsibility for losing it in the first instance.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.