Opinion
525335
04-26-2018
In the Matter of Anthony PEREZ, Petitioner, v. Anthony POLIZZI, as Hearing Officer, Respondent.
Anthony Perez, Wallkill, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Anthony Perez, Wallkill, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: McCarthy, J.P., Egan Jr., Lynch, Clark and Mulvey, JJ.
MEMORANDUM AND JUDGMENT
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.
A pat frisk of petitioner, a prison inmate, revealed three pills encased in clear plastic wrap secreted inside the inner seam of his pants. After the pills were identified as Neurontin by facility medical personnel, he was charged in a misbehavior report with possession of unauthorized medication, possession of contraband and smuggling. Following a tier III disciplinary hearing, he was found guilty of all charges. On administrative appeal, the charge of possessing contraband was dismissed and the penalty reduced. Petitioner thereafter commenced this CPLR article 78 proceeding seeking annulment of the remaining charges.
We confirm. The misbehavior report, testimony of the correction officer who performed the search and authored the report and the documentary evidence provide substantial evidence to support the determination of guilt (see Matter of Shearer v. Annucci , 155 A.D.3d 1277, 1277, 65 N.Y.S.3d 249 [2017] ; Matter of Baez v. Venettozzi , 155 A.D.3d 1231, 1232, 64 N.Y.S.3d 735 [2017] ). Contrary to petitioner's contention, the hearing testimony and documentary evidence establishedthat a proper chain of custody was maintained, inasmuch as the correction officer never relinquished control between the time that he confiscated the contraband from petitioner and the time that he secured the pills in an evidence locker (see Matter of Bailey v. Annucci , 149 A.D.3d 1438, 1438–1439, 52 N.Y.S.3d 733 [2017] ; Matter of Bernard v. Annucci , 148 A.D.3d 1448, 1449, 50 N.Y.S.3d 189 [2017] ). Nor was petitioner impermissibly denied the right to call witnesses; the record demonstrates that the facility nurse who identified the pills was no longer an employee of the Department of Corrections and Community Supervision and refused to testify (see Matter of Lopez v. Annucci , 146 A.D.3d 1262, 1263, 45 N.Y.S.3d 700 [2017] ), and the requested watch commander's testimony would have been redundant, as the chain of custody had already been established (see Matter of Baxton v. Annucci , 142 A.D.3d 1235, 1236, 38 N.Y.S.3d 633 [2016] ). Finally, the record amply demonstrates that the determination of guilt flowed from the evidence presented, rather than any alleged hearing officer bias (see Matter of Williams v. Department of Corr. & Community Supervision , 155 A.D.3d 1207, 1207, 63 N.Y.S.3d 267 [2017] ; Matter of Kalwasinski v. Venettozzi , 152 A.D.3d 853, 854, 54 N.Y.S.3d 888 [2017] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
McCarthy, J.P., Egan Jr., Lynch, Clark and Mulvey, JJ., concur.