Almonte v. Annucci

177 N.Y.S.3d 921 (Mem)

In the Matter of Ramon ALMONTE, Petitioner,

v.Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.

534692

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: November 10, 2022

Decided and Entered: December 8, 2022

Ramon Almonte, Gouverneur, petitioner pro se.

Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.

Before: Aarons, J.P., Reynolds Fitzgerald, Ceresia, Fisher and McShan, 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 a prison disciplinary rule.

Petitioner, an incarcerated individual, was observed attempting to pass an object under a door within the correctional facility. A correction officer intercepted the object, which was an envelope containing a handwritten note that the correction officer perceived to be an attempt to distribute drugs within the facility. As a result of the incident, petitioner was charged with conspiring to introduce drugs into the facility. Following a tier III disciplinary hearing, petitioner was found guilty of the charge. Upon administrative review, the determination of guilty was affirmed, and this CPLR article 78 proceeding ensued.

We confirm. The misbehavior report and documentary evidence — including the confiscated note, as well as the memorandum written by the correction officer who discovered that note — provide substantial evidence to support the determination of guilt (see Matter of Rose v. Lilley, 205 A.D.3d 1187, 1188, 165 N.Y.S.3d 923 [3d Dept. 2022] ; Matter of Adams v. Annucci, 160 A.D.3d 1331, 1331–1332, 75 N.Y.S.3d 343 [3d Dept. 2018] ; Matter of Smart v. New York State Dept. of Correctional Servs., 75 A.D.3d 1017, 1017–1018, 907 N.Y.S.2d 526 [3d Dept. 2010] ; see also 7 NYCRR 270.2 [B][14] [xxiv]). Petitioner's exculpatory statements and denial of guilt presented credibility issues for resolution by the Hearing Officer (see e.g. Matter of Barnes v. Venettozzi, 207 A.D.3d 969, 970, 172 N.Y.S.3d 775 [3d Dept. 2022] ). Contrary to petitioner's contention, we conclude, based upon our review of the record, "that the hearing was conducted in a fair and impartial manner and that the determination of guilt flowed from the evidence presented and not from any alleged bias on the part of the Hearing Officer" ( Matter...