Opinion
523212
02-01-2018
In the Matter of Timothy WOOD, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, et al., Respondents.
Timothy Wood, Attica, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of counsel), for respondents.
Timothy Wood, Attica, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of counsel), for respondents.
Before: Garry, P.J., Lynch, Clark, Aarons and Pritzker, 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 respondent Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with possessing a weapon and destroying state property after a search of his cell uncovered a toothbrush with a state-issued razor blade attached to it that was secured inside his locker with a magnet. Following a tier III disciplinary hearing, petitioner was found guilty as charged. The penalty imposed was subsequently modified, and the modified determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, photograph of the weapon and the hearing testimony of the correction officer who found it provide substantial evidence of petitioner's guilt (see Matter of Hill v. Venettozzi, 144 A.D.3d 1295, 1296, 40 N.Y.S.3d 297 [2016] ; Matter of Gano v. Venettozzi, 142 A.D.3d 1240, 1240, 38 N.Y.S.3d 626 [2016] ). Petitioner's claim that the weapon was not his, and that it must have been planted in his locker by an inmate the day of the cell search while petitioner was working at the metal shop, created a credibility issue for the Hearing Officer to resolve (see Matter of Starling v. New York State Dept. of Corr. & Community Supervision, 123 A.D.3d 1195, 1196, 996 N.Y.S.2d 403 [2014] ; Matter of Aguirre v. Fischer, 111 A.D.3d 1219, 1220, 975 N.Y.S.2d 814 [2013] ). We also note that a reasonable inference of possession arises by virtue of petitioner's control over the locker area of his cell (see Matter of Mitchell v. Department of Corr. & Community Supervision, 147 A.D.3d 1135, 1136, 45 N.Y.S.3d 820 [2017] ; Matter of Perkins v. Annucci, 129 A.D.3d 1421, 1421–1422, 10 N.Y.S.3d 908 [2015] ). Moreover, petitioner's due process rights were not violated by the Hearing Officer's refusal to order fingerprint and DNA analysis on the weapon, inasmuch as the mere fact that another inmate's fingerprints or DNA might have been on it would not have defeated the inference of possession established at the hearing (see Matter of Vaughn v. Selsky, 276 A.D.2d 958, 958–959, 714 N.Y.S.2d 386 [2000], appeal dismissed 96 N.Y.2d 753, 725 N.Y.S.2d 278, 748 N.E.2d 1074 [2001] ).
We reject petitioner's claim that he was improperly denied the right to call certain witnesses. Although petitioner, in support of his contention that the weapon was planted, requested the testimony of inmates from his cell block to establish the fact that the cell doors are open on the block at times during the day, he admitted that the requested witnesses did not have any knowledge regarding whether the cell doors were open on the date and time when he contends the weapon was planted. Inasmuch as the Hearing Officer conceded the fact that cell doors are open at certain times on petitioner's cell block, the requested testimony was properly denied as cumulative and redundant (see Matter of Thorpe v. Fischer, 67 A.D.3d 1101, 1102, 889 N.Y.S.2d 690 [2009] ; Matter of Brown v. Taylor, 62 A.D.3d 1230, 1231, 882 N.Y.S.2d 321 [2009] ). Finally, petitioner was not denied the opportunity to observe the cell search, insofar as he was out of his cell working in the metal shop at the time of the search (see Matter of Wallace v. Annucci, 153 A.D.3d 1499, 1500, 59 N.Y.S.3d 913 [2017] ; Matter of Bartello v. Annucci, 142 A.D.3d 1194, 1194, 37 N.Y.S.3d 463 [2016] ). Petitioner's remaining claims have been considered and found to be without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Garry, P.J., Lynch, Clark, Aarons and Pritzker, JJ., concur.