Opinion
523826
12-07-2017
In the Matter of Joseph TRUMAN, Petitioner, v. Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Joseph Truman, Attica, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Joseph Truman, Attica, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: Peters, P.J., Garry, Lynch, Mulvey and Rumsey, JJ.
MEMORANDUM AND JUDGMENTProceeding 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.
Following a suspicious pat frisk, a correction sergeant asked petitioner if he was carrying contraband and petitioner allegedly responded that he had a ball of synthetic marihuana with a string attached concealed in his rectum. During the ensuing strip frisk of petitioner, a cellophane ball containing two bundles of a green leafy substance was recovered and a correction officer tested the substance for drugs. The substance tested negative for marihuana, but positive for amphetamines. As a result, petitioner was charged in a misbehavior report with possessing contraband, possessing a controlled substance, possessing an intoxicant and smuggling. He was found guilty of the charges following a tier III disciplinary hearing and the determination was later upheld on administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.
Initially, respondent concedes and we agree that substantial evidence does not support that part of the determination finding petitioner guilty of possessing an intoxicant. In addition, given the lack of testimony from correction officials indicating that appropriate testing procedures were followed as was needed to lay a foundation for admission of the test results, we find that part of the determination finding him guilty of possessing a controlled substance is not supported by substantial evidence (see Matter of Gonzalez v. Selsky, 23 A.D.3d 724, 725, 803 N.Y.S.2d 315 [2005]; Matter of Hernandez v. Selsky, 306 A.D.2d 595, 596, 759 N.Y.S.2d 604 [2003], lv denied 100 N.Y.2d 514, 769 N.Y.S.2d 200, 801 N.E.2d 421 [2003] ; compare Matter of Wendell v. Annucci, 149 A.D.3d 1430, 1430–1431, 51 N.Y.S.3d 707 [2017]; Matter of McDermott v. Annucci, 142 A.D.3d 1210, 1210, 51 N.Y.S.3d 707 [2016] ). In view of this deficiency, and given the absence of any testimony from correctional officials specifically identifying the substance as synthetic marihuana or attesting to petitioner's alleged admission, we further conclude that substantial evidence does not support that part of the determination finding petitioner guilty of possessing contraband (see Matter of McCaskell v. Rodriguez, 148 A.D.3d 1407, 1408, 48 N.Y.S.3d 642 [2017] ; compare Matter of King v. Venettozzi, 152 A.D.3d 1115, 1116–117, 59 N.Y.S.3d 822 [2017] ; Matter of Sealy v. New York State Dept. of Corr. & Community Supervision, 147 A.D.3d 1127, 45 N.Y.S.3d 814 [2017],lv denied 29 N.Y.3d 912, 63 N.Y.S.3d 2, 85 N.E.3d 97 [2017] ; Matter of McDermott v. Annucci, 142 A.D.3d at 1210, 37 N.Y.S.3d 471 ; Matter of Oliver v. Fischer, 107 A.D.3d 1268, 1269–1269, 967 N.Y.S.2d 248 [2013] ). Petitioner, however, has abandoned his challenge to the finding of guilt with respect to the smuggling charge by not addressing it in his brief (see Matter of King v. Venettozzi, 152 A.D.3d at 1116, 59 N.Y.S.3d 822 ), and we decline to disturb this aspect of the determination. Although we annul that part of the determination finding petitioner guilty of possessing an intoxicant, possessing a controlled substance and possessing contraband, we need not remit the matter for a reassessment of the penalty on the remaining charge given that petitioner has already served the penalty and no loss of good time was imposed (see Matter of Edwards v. Annucci, 131 A.D.3d 770, 771, 14 N.Y.S.3d 598 [2015] ). We have considered petitioner's remaining contentions and find that they are either unpreserved for our review or are lacking in merit.
ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of possessing an intoxicant, possessing a controlled substance and possessing contraband; petition granted to that extent and the Commissioner of Corrections and Community Supervision is directed to expunge all references to these charges from petitioner's institutional record; and, as so modified, confirmed.
Peters, P.J., Garry, Lynch, Mulvey and Rumsey, JJ., concur.