At page 1431 Substantial evidence supporting disciplinary finding of guilt6 citing casesPetitioner was charged in a misbehavior report with committing an unhygienic act after a search of his cell allegedly uncovered the fingertip of a latex glove…
- Young v. Rodriguez, 2018 NY Slip Op 6610 (N.Y. App. Div. 3d Dep't 2018).publishedTo the extent that [*2]petitioner contends that there was a violation of Department of Corrections and Community Supervision Directive No. 4910A (III) (F) (3) because the reason for finding probable cause was not recorded on the appropriat…
- Matter of Reeves v. Annucci, 2018 NY Slip Op 507 (N.Y. App. Div. 3d Dep't 2018).publishedAlthough petitioner denied admitting that he had ingested the substance found in his cell, stating instead that he only "tasted it," this presented a credibility issue for the Hearing Officer to resolve ( see Matter of Boitschenko v Annucc…
- Matter of Freeman v. Annucci, 151 A.D.3d 1509 (N.Y. App. Div. 3d Dep't 2017).publishedThe misbehavior reports and related documentation, together with the hearing testimony, including the testimony of the correction officers who obtained petitioner’s admissions, provide substantial evidence supporting the determination of g…
- Pasley v. Venettozzi, 148 A.D.3d 1380 (N.Y. App. Div. 3d Dep't 2017).published The misbehavior report, together with the testimony of the correction officer and sergeant who interviewed petitioner and obtained his admission, provide substantial evidence supporting the determination of guilt (see Matter of Weekes v Pr…
- Matter of McDermott v. Annucci, 142 A.D.3d 1210 (N.Y. App. Div. 3d Dep't 2016).publishedMoreover, although petitioner maintained that his written statement was coerced, this presented a cred *1211 ibility issue for the Hearing Officer to resolve (see Matter of Weekes v Prack, 129 AD3d 1430, 1431 [2015]; Matter of Gren v Annuc…
v.
Albert Prack, as Director of Special Housing and Inmate Disciplinary Program, Respondent
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in St. Lawrence County) to review a determination of the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating a prison disciplinary rule.
[*1431] Petitioner was charged in a misbehavior report with committing an unhygienic act after a search of his cell allegedly uncovered the fingertip of a latex glove filled with urine. Following a tier III disciplinary hearing, petitioner was found guilty and that determination was affirmed upon administrative appeal. This CPLR article 78 proceeding ensued.
The misbehavior report and testimony from the correction officer that petitioner, in fact, admitted that the liquid was urine provides substantial evidence to support the determination of guilt (see Matter of Haughey v Artus, 108 AD3d 956, 956 [2013]; Matter of Dushane v Fischer, 102 AD3d 1043, 1043 [2013]). Although petitioner testified that the substance was water and denied that he made any incriminating admission to the correction officer, this created a credibility issue for the Hearing Officer to resolve (see Matter of Silverstein v Bezio, 65 AD3d 1424, 1425 [2009]). To the extent that petitioner asserts that there was a violation of Department of Corrections and Community Supervision Directive No. 4910A (VII) (c) because the substance was improperly destroyed before the conclusion of the hearing, petitioner has failed to preserve this issue for this Court’s review by not raising it at the hearing or on administrative appeal (see Matter of Cayenne v Goord, 16 AD3d 782, 783 [2005]). Were we to consider such issue, we would find petitioner’s reliance on Matter of Clark v Fischer (114 AD3d 1116 [2014]) to be misplaced, as the correction officer here testified that petitioner admitted that the liquid was urine.
Peters, P.J., Lahtinen, Lynch and Devine, JJ., concur.Adjudged that the determination is confirmed, without costs, and petition dismissed.