At page 1285 Reviewing disciplinary finding based on evidence sufficiency10 citing cases“Upon reviewing the verified petition, we disagree.”
- Matter of Torres v. Annucci, 2018 NY Slip Op 8595 (N.Y. App. Div. 3d Dep't 2018).publishedThe conflicting testimony presented a credibility issue for the Hearing Officer to resolve ( see Matter of Alston v Annucci , 153 AD3d 981, 982 [2017]; Matter of Giano v Prack , 138 AD3d 1285, 1285-1286 [2016], lv denied 27 NY3d 912 [2016]…
- Matter of Rogers v. Annucci, 2018 NY Slip Op 8405 (N.Y. App. Div. 3d Dep't 2018).publishedTo the extent that petitioner asserts that he was denied the opportunity to observe the cell search, the record contains conflicting evidence as to whether petitioner was permitted to observe the search and, thus, presented a credibility i…
- Matter of Lebron v. Annucci, 2018 NY Slip Op 5555 (N.Y. App. Div. 3d Dep't 2018).publishedThe misbehavior report, related documentation and testimony of the correction officers and sergeant involved in the incident provide substantial evidence supporting the determination of guilt ( see Matter of Giano v Prack , 138 AD3d 1285,…
- Cruz v. Annucci, 149 A.D.3d 1446 (N.Y. App. Div. 3d Dep't 2017).published Although petitioner maintained that the items were planted in his cell in retaliation for a complaint that he had filed against the author of the misbehavior report, this presented a credibility issue for the Hearing Officer to resolve (se…
- Matter of Kirby v. Annucci, 147 A.D.3d 1134 (N.Y. App. Div. 3d Dep't 2017).publishedPetitioner’s assertion that the marihuana was planted by a correction officer presented a credibility issue, which the Hearing Officer resolved against him (see Matter of Giano v Prack, 138 AD3d 1285, 1285-1286 [2016], lv denied 27 NY3d 91…
- Matter of Williams v. Annucci, 142 A.D.3d 1213 (N.Y. App. Div. 3d Dep't 2016).publishedSubstantial evidence was adduced supporting the determination, including the misbehavior report and the testimony of its author, who conducted the search, as well as the testimony of other correctional officers, certain documentary evidenc…
- Matter of Bartello v. Annucci, 142 A.D.3d 1194 (N.Y. App. Div. 3d Dep't 2016).publishedThe misbehavior report and testimony of its author, who searched petitioner’s cell and found the weapon, combined with the documentary evidence and photographs of the weapon, provide substantial evidence to support the determination (see M…
- Matter of Barnes v. Rodriguez, 2024 NY Slip Op 00345 (N.Y. App. Div. 3d Dep't 2024).publishedSuch claims clearly "implicate the sufficiency of the evidence upon which the determination of guilt is based," thereby presenting an issue of substantial evidence that, in turn, warranted transfer to this Court ( Matter of Bonez v Commiss…
At page 1286 Review of timeliness and bias in disciplinary hearings5 citing casesfor the Hearing Officer to resolve (see Matter of Fulmore v Prack, 116 AD3d 1281, 1282 [2014]; Matter of Aguirre v Fischer, 111 AD3d 1219, 1220 [2013]; see…
- Matter of Alston v. Annucci, 153 A.D.3d 981 (N.Y. App. Div. 3d Dep't 2017).publishedContrary to petitioner’s contention regarding the timeliness of the hearing, the record establishes that once the facility-wide lock down ended just two days after petitioner was confined, petitioner’s hearing was extended upon proper auth…
- Matter of Mears v. Venettozzi, 150 A.D.3d 1498 (N.Y. App. Div. 3d Dep't 2017).publishedNor is there any basis in the record upon which to conclude that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Wilson v Annucci, 138 AD3d 1335, 1335 [2016]; Matter of Giano v Prack, 13…
- Vidal v. Annucci, 149 A.D.3d 1366 (N.Y. App. Div. 3d Dep't 2017).published Petitioner’s claim is belied by the record, which discloses that, although numerous extensions to continue the hearings were requested and granted in both cases, the hearings were completed within the time frames set forth in the extension…
- Matter of Smith v. Venettozzi, 142 A.D.3d 1201 (N.Y. App. Div. 3d Dep't 2016).publishedLikewise, there is no indication that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Wilson v Annucci, 138 AD3d 1335, 1335 [2016]; Matter of Giano v Prack, 138 AD3d 1285, 1286 [2016], l…
v.
Albert Prack, as Director of Special Housing and Inmate Disciplinary Programs, Respondent
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 the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, was charged with damaging state property and possession of a weapon, altered items and gambling paraphernalia following a search of his prison cell during which a correction officer discovered and confiscated, among other things, a section of tweezers that had been sharpened to a point. Following a tier III disciplinary hearing, petitioner was found guilty of all charges. On administrative appeal, the finding of guilt on all charges was affirmed. Petitioner thereafter commenced this CPLR article 78 proceeding.
Petitioner contends that no issue of substantial evidence was raised, and, therefore, the matter was erroneously transferred to this Court. Upon reviewing the verified petition, we disagree. While petitioner’s claims in his verified petition are cast as procedural challenges, several of the claims therein challenge the veracity and authenticity of the documentary and testimonial evidence adduced at the hearing, and, therefore, such allegations implicate the sufficiency of the evidence upon which the determination of guilt is based. Accordingly, we find that the matter was properly transferred to this Court (see Matter of Bonez v Commissioner of Prison Sys. of State of N.Y., Dept. of Corrections, 65 AD3d 1411, 1411 [2009]; Matter of Crawford v Girdich, 301 AD2d 921, 921 and n [2003]).
Turning to the merits, the misbehavior report, unusual incident report, photograph of the weapon and documentary evidence, together with the testimony of both the correction officer who conducted the cell search and the correction officer who assisted with the search, provide substantial evidence to support the determination of guilt (see Matter of Perkins v Annucci, 129 AD3d 1421, 1421 [2015]; Matter of Diaz v Prack, 127 AD3d 1489, 1490 [2015]; Matter of Nieves v Annucci, 123 AD3d 1368, 1368-1369 [2014]). Petitioner’s contentions that the prohibited items found in his cell were planted there to retaliate against him and that he was not permitted to observe and be present during the search of his cell raised credibility issues[*1286] for the Hearing Officer to resolve (see Matter of Fulmore v Prack, 116 AD3d 1281, 1282 [2014]; Matter of Aguirre v Fischer, 111 AD3d 1219, 1220 [2013]; see also Matter of Horton v Annucci, 133 AD3d 1002, 1003 [2015]). As for petitioner’s claim that the disciplinary hearing was not conducted in a timely manner, the record discloses that, although more than 14 days elapsed between the writing of the misbehavior report and the conclusion of the hearing (see 7 NYCRR 251-5.1 [b]), appropriate extensions were obtained and the hearing was completed within the allotted time frame (see Matter of Moreno v Fischer, 100 AD3d 1167, 1168 [2012]; Matter oflfill v Fischer, 72 AD3d 1367, 1368 [2010]). Finally, upon reviewing the record, we find no indication that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013], lv denied 21 NY3d 865 [2013]; Matter of White v Fischer, 95 AD3d 1582, 1583 [2012]). Petitioner’s remaining contentions, to the extent that they are preserved for our review, have been examined and found to be without merit.
Peters, P.J., Egan Jr., Rose and Clark, JJ., concur.Adjudged that the determination is confirmed, without costs, and petition dismissed.