Opinion
359 TP 20-01644
04-30-2021
In the Matter of Rahim THOMAS, Petitioner, v. Anthony ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent.
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KEVIN C. HU OF COUNSEL), FOR RESPONDENT.
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KEVIN C. HU OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, TROUTMAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a tier III disciplinary hearing, that he violated inmate rules 102.10 ( 7 NYCRR 270.2 [B] [3] [i] [threats]), 104.11 ( 7 NYCRR 270.2 [B] [5] [ii] [violent conduct]), 104.12 ( 7 NYCRR 270.2 [B] [5] [iii] [demonstration]), and 107.10 ( 7 NYCRR 270.2 [B] [8] [i] [interference with employee]). Contrary to petitioner's contention, the misbehavior report and hearing testimony constitute substantial evidence supporting the determination that he violated those inmate rules (see generally 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 Williams v. Annucci , 162 A.D.3d 1530, 1531, 78 N.Y.S.3d 838 [4th Dept. 2018] ). Petitioner failed to raise in his administrative appeal his contention that the Hearing Officer improperly relied upon confidential information. Petitioner thus failed to exhaust his administrative remedies with respect to that contention, and this Court lacks the discretionary authority to consider it (see Matter of Yarborough v. Annucci , 164 A.D.3d 1667, 1668, 84 N.Y.S.3d 656 [4th Dept. 2018] ; Matter of Rodriguez v. Fischer , 96 A.D.3d 1374, 1375, 946 N.Y.S.2d 735 [4th Dept. 2012] ; see generally Matter of Khan v. New York State Dept. of Health , 96 N.Y.2d 879, 880, 730 N.Y.S.2d 783, 756 N.E.2d 71 [2001] ).
Petitioner contends that the misbehavior report lacked specifics regarding his role in the incident, recited the wrong date of the incident, and was not properly endorsed. We conclude that the misbehavior report was sufficiently detailed to enable petitioner to present a defense (see Matter of Toro v. Fischer , 104 A.D.3d 1036, 1037, 960 N.Y.S.2d 754 [3d Dept. 2013] ; see generally Matter of Abdur-Raheem v. Mann , 85 N.Y.2d 113, 123, 623 N.Y.S.2d 758, 647 N.E.2d 1266 [1995] ; Matter of Jones v. Fischer , 111 A.D.3d 1362, 1363, 974 N.Y.S.2d 220 [4th Dept. 2013] ). During the hearing, the author of the misbehavior report explained the error with respect to the date of the incident listed on the report, and we conclude that petitioner was not prejudiced by the error (see Matter of Werner v. Philips , 20 A.D.3d 711, 712, 798 N.Y.S.2d 241 [3d Dept. 2005] ). Petitioner also failed to demonstrate that he was prejudiced by the failure of the employee who observed the incident to endorse the report. That employee's name and position appeared on the face of the report, and petitioner had the opportunity to question him during the hearing (see Matter of Winbush v. Goord , 6 A.D.3d 821, 822, 773 N.Y.S.2d 918 [3d Dept. 2004] ; see also Matter of Blackwell v. Goord , 12 A.D.3d 816, 817, 784 N.Y.S.2d 244 [3d Dept. 2004] ).