Opinion
530303
09-24-2020
In the Matter of Sam RODARI, Petitioner, v. Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Sam Rodari, Pine City, petitioner pro se. Letitia James, Attorney General, Albany (Victor Paladino of counsel), for respondent.
Sam Rodari, Pine City, petitioner pro se.
Letitia James, Attorney General, Albany (Victor Paladino of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Aarons, Pritzker and Colangelo, 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.
During a suspicion-based search of petitioner's cell, a correction officer discovered on the top shelf of petitioner's locker a ceramic razor blade, with a handle and sheath made from plastic security pen caps, hidden in petitioner's belt. As a result, petitioner was charged in a misbehavior report with possessing a weapon, possessing contraband 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 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] ; Matter of Horne v. Fischer, 98 A.D.3d 788, 789, 949 N.Y.S.2d 814 [2012] ). The fact that the weapon was found in an area within petitioner's control, even if not exclusive, supports the inference of possession (see Matter of Dowling v. Venettozzi, 177 A.D.3d at 1063–1064, 109 N.Y.S.3d 920 ; Matter of Wood v. Annucci, 158 A.D.3d 856, 857, 70 N.Y.S.3d 599 [2018] ; Matter of Gomez v. New York State Dept. of Corr. & Community Supervision, 147 A.D.3d 1140, 1141, 46 N.Y.S.3d 296 [2017] ). The record does not reflect that the Hearing Officer relied upon any confidential information in reaching his determination, and an assessment of the credibility of the information that prompted the search was therefore not required (see Matter of Dowling v. Venettozzi, 177 A.D.3d at 1064, 109 N.Y.S.3d 920 ; Matter of Ortiz v. Annucci, 160 A.D.3d 1192, 1193, 71 N.Y.S.3d 391 [2018] ; Matter of Gomez v. New York State Dept. of Corr. & Community Supervision, 147 A.D.3d at 1141, 46 N.Y.S.3d 296 ). Petitioner's contrary testimony presented a credibility issue for the Hearing Officer to resolve (see Matter of Harvey v. Fischer, 94 A.D.3d 1303, 1303, 942 N.Y.S.2d 680 [2012] ; Matter of Dozier v. Selsky, 54 A.D.3d 1074, 1075, 864 N.Y.S.2d 188 [2008] ).
Turning to petitioner's procedural contentions, petitioner's due process rights were not violated by the Hearing Officer's refusal to order a DNA analysis on the weapon and belt, inasmuch as the mere fact that another inmate's fingerprints or DNA might have been on it would not have defeated the inference of possession established at the hearing (see Matter of Wood v. Annucci, 158 A.D.3d at 857, 70 N.Y.S.3d 599 ; Matter of Vaughn v. Selsky, 276 A.D.2d 958, 958–959, 714 N.Y.S.2d 386 [2000], appeal dismissed 96 N.Y.2d 753, 725 N.Y.S.2d 278, 748 N.E.2d 1074 [2001] ). Further, as petitioner was in the package room when the cell search was conducted, he was not improperly denied the opportunity to observe the cell search in violation of Department of Corrections and Community Supervision Directive No. 4910 (see Matter of Wood v. Annucci, 158 A.D.3d at 858, 70 N.Y.S.3d 599 ; Matter of Mason v. Annucci, 153 A.D.3d 1013, 1014, 56 N.Y.S.3d 906 [2017] ; Matter of Bartello v. Annucci, 142 A.D.3d 1194, 1194, 37 N.Y.S.3d 463 [2016] ). To the extent that petitioner's remaining contentions are properly before us, they are without merit.
Egan Jr., J.P., Lynch, Aarons, Pritzker and Colangelo, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.