Opinion
01-26-2017
In the Matter of Timothy J. WENDELL, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Timothy J. Wendell, Collins, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Timothy J. Wendell, Collins, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: EGAN JR., J.P., LYNCH, ROSE, CLARK and MULVEY, JJ.
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 finding petitioner guilty of violating a prison disciplinary rule.
During the course of an investigation, correction officials learned that petitioner was involved in a plan with another inmate to have the inmate's fiancée send a package containing synthetic marihuana to petitioner at the correctional facility. The fiancée subsequently gave a statement to correction officials admitting that she had sent a package to petitioner that contained synthetic marihuana. As a result, petitioner was charged in a misbehavior report with conspiring to bring drugs into the facility and smuggling. He was found guilty of the charges following a tier III disciplinary hearing. On administrative appeal, the former charge was dismissed, but that part of the determination finding petitioner guilty of smuggling was upheld with a modified penalty. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, testimony of the investigator who authored it and confidential statement given by the fiancée provide substantial evidence supporting the determination of guilt (see Matter of Safford v. Annucci, 144 A.D.3d 1271, 1272, 46 N.Y.S.3d 226 [2016] ; Matter of Hicks v. Goord, 35 A.D.3d 1000, 1000–1001, 825 N.Y.S.2d 320 [2006], lv. denied 8 N.Y.3d 806, 833 N.Y.S.2d 426, 865 N.E.2d 843 [2007] ). The fact that petitioner was not actually found to be in possession of synthetic marihuana does not negate the determination (see e.g. Matter of Zimmerman v. Annucci, 139 A.D.3d 1205, 1206, 29 N.Y.S.3d 827 [2016] ; Matter of Booker v. Fischer, 102 A.D.3d 1045, 1046, 958 N.Y.S.2d 239 [2013] ). Furthermore, although petitioner contends that he was improperly denied a copy of the confidential statement, the Hearing Officer read the statement into the record at the hearing and petitioner was sufficiently apprised of its contents. We have reviewed petitioner's remaining arguments and find that they are either unpreserved for our review or are lacking in merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.