Opinion
529964
07-30-2020
In the Matter of Jalah WIMBERLY, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Danielle Neroni Reilly, Albany, for petitioner. Letitia James, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
Danielle Neroni Reilly, Albany, for petitioner.
Letitia James, Attorney General, Albany (Martin A. Hotvet 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 respondent finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with engaging in or encouraging a sexual act, violating visitation procedures and creating a disturbance. The charges stemmed from an incident in the visitation room in which a correction officer observed petitioner's wife rubbing petitioner's penis. Following a tier III disciplinary hearing, petitioner was found guilty as charged and that determination was upheld on administrative appeal. This CPLR article 78 proceeding followed.
We confirm. The detailed misbehavior report – standing alone – provides substantial evidence to support the determination (see Matter of Espinal v. Annucci, 175 A.D.3d 1696, 1696, 108 N.Y.S.3d 540 [2019] ; Matter of Green v. Kirkpatrick, 167 A.D.3d 1138, 1139, 89 N.Y.S.3d 411 [2018], lv denied 32 N.Y.3d 919, 100 N.Y.S.3d 217, 123 N.E.3d 876 [2019] ). We reject petitioner's contention that he was improperly denied a video recording of the visitation room. The Hearing Officer requested the recording and was advised by facility staff that the video did not exist (see Matter of Lashway v. Keyser, 178 A.D.3d 1224, 1225, 115 N.Y.S.3d 166 [2019] ; Matter of Mullins v. Annucci, 177 A.D.3d 1061, 1061, 112 N.Y.S.3d 329 [2019] ). As to petitioner's claim that he was improperly denied the right to call witnesses, the record reflects that, although petitioner initially requested the testimony of an inmate witness, he later informed the Hearing Officer that he no longer wanted the witness's testimony and had no further evidence to present. Accordingly, this claim was waived (see Matter of Brown v. Venettozzi, 162 A.D.3d 1434, 1435, 81 N.Y.S.3d 243 [2018] ; Matter of Cornwall v. Fischer, 74 A.D.3d 1507, 1509, 904 N.Y.S.2d 520 [2010] ). Petitioner's remaining claims have been considered and found to be without merit.
Egan Jr., J.P., Lynch, Aarons, Pritzker and Colangelo, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.