Opinion
533640
03-10-2022
In the Matter of David RAMOS, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, et al., Respondents.
David Ramos, Coxsackie, petitioner pro se. Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondents.
David Ramos, Coxsackie, petitioner pro se.
Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondents.
Before: Egan Jr., J.P., Lynch, Aarons, Reynolds Fitzgerald and Fisher, 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 respondent Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.
During a random search of petitioner's cell, a correction officer discovered on the top lip of petitioner's locker an ice pick-type weapon. The weapon consisted of a sharp piece of metal with cloth wrapped around the handle and measured 4½ inches by 2 inches. As a result, petitioner was charged in a misbehavior report with possessing a weapon and possessing an altered item. Following a tier III disciplinary hearing, he was found guilty of the charges, and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report and related documentation, together with the hearing testimony, including the testimony of the correction officer who performed the search, provide substantial evidence supporting the determination of guilt (see Matter of Rodari v. Venettozzi, 186 A.D.3d 1860, 1861, 129 N.Y.S.3d 359 [2020] ; Matter of Dowling v. Venettozzi, 177 A.D.3d 1063, 1063, 109 N.Y.S.3d 920 [2019], lv denied 35 N.Y.3d 901, 2020 WL 1582025 [2020] ; Matter of Sawyer v. Annucci, 140 A.D.3d 1499, 1500, 35 N.Y.S.3d 511 [2016] ; see also 7 NYCRR 270.2 [B][14][i]; Matter of Freeman v. Annucci, 151 A.D.3d 1509, 1510, 54 N.Y.S.3d 602 [2017] ). "The fact that the weapon was found in an area within petitioner's control, even if not exclusive, supports the inference of possession" ( Matter of Nix v. Venettozzi, 196 A.D.3d 933, 933, 151 N.Y.S.3d 738 [2021] [internal quotation marks and citations omitted]), and it was petitioner's " ‘own responsibility to make sure that no unauthorized items were present in his cell’ " ( Matter of Ballard v. Annucci, 170 A.D.3d 1298, 1300, 95 N.Y.S.3d 611 [2019], quoting Matter of Johnson v. Barkley, 260 A.D.2d 882, 882–883, 689 N.Y.S.2d 537 [1999] ). Petitioner's contention that he was unaware of the weapon's presence in his cell presented a credibility issue for the Hearing Officer to resolve (see Matter of Dowling v. Venettozzi, 177 A.D.3d at 1064, 109 N.Y.S.3d 920 ; Matter of Sawyer v. Annucci, 140 A.D.3d at 1499, 35 N.Y.S.3d 511 ). To the extent that petitioner's remaining contentions are properly before us, they have been considered and found to be without merit.
Egan Jr., J.P., Lynch, Aarons, Reynolds Fitzgerald and Fisher, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.