Opinion
09-15-2016
In the Matter of Jason SMITH, Petitioner, v. Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, et al., Respondents.
Jason Smith, New York City, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondents.
Jason Smith, New York City, petitioner pro se.Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondents.
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.
Petitioner occupied a cell in the special housing unit and, when a correction officer inspected it, he discovered that various types of graffiti, some of which were gang-related, had been written on the walls and door. As a result, petitioner was charged in a misbehavior report with destroying state property, engaging in gang-related activities and refusing a direct order. Following a tier III disciplinary hearing, petitioner was found guilty of the charges, and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
Initially, respondents concede, and we agree, that that part of the determination finding petitioner guilty of refusing a direct order is not supported by substantial evidence and must be aned (see Matter of Tafari v. Annucci, 137 A.D.3d 1356, 1357, 25 N.Y.S.3d 912 [2016] ; Matter of Ferril v. Annucci, 134 A.D.3d 1264, 1265, 20 N.Y.S.3d 753 [2015] ). We reach a different conclusion, however, with respect to the remainder of the determination, which is supported by substantial evidence consisting of the detailed misbehavior report, supporting documentation and hearing testimony (see Matter of Telesford v. Annucci, 131 A.D.3d 753, 753, 13 N.Y.S.3d 917 [2015] ; Matter of Gittens v. Fischer, 100 A.D.3d 1121, 1121, 952 N.Y.S.2d 917 [2012] ). Nevertheless, the matter must be remitted for a redetermination of the penalty given that a loss of good time was imposed in connection with the original determination (see Matter of Tafari v. Annucci, 137 A.D.3d at 1357, 25 N.Y.S.3d 912; Matter of Ferril v. Annucci, 134 A.D.3d at 1265, 20 N.Y.S.3d 753). Contrary to petitioner's claim, there is no indication that the hearing transcript was intentionally altered or contains significant inaudible portions that preclude meaningful review (see Matter of Allen v. Venettozzi, 139 A.D.3d 1208, 1208–1209, 29 N.Y.S.3d 829 [2016] ; Matter of Smith v. Prack, 138 A.D.3d 1286, 1287, 31 N.Y.S.3d 235 [2016] ). Likewise, there is no indication that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Wilson v. Annucci, 138 A.D.3d 1335, 1335, 28 N.Y.S.3d 640 [2016] ; Matter of Giano v. Prack, 138 A.D.3d 1285, 1286, 31 N.Y.S.3d 233 [2016], lv. denied 27 N.Y.3d 912, 2016 WL 4533480 ). Petitioner's remaining contentions, to the extent that they are properly before us, have been considered and are lacking in merit.
ADJUDGED that the determination is modified, without costs, by aning so much thereof as found petitioner guilty of refusing a direct order and imposed a penalty; petition granted to that extent, respondent Commissioner of Corrections and Community Supervision is directed to expunge all references to this charge from petitioner's institutional record and matter remitted for an administrative redetermination of the penalty on the remaining violations; and, as so modified, confirmed.
McCARTHY, J.P., GARRY, EGAN JR., LYNCH and DEVINE, JJ., concur.