IN RE: Michael DERBY (2024)

MEMORANDUM AND ORDER

It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.

Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul that part of a determination, following a tier III disciplinary hearing, that he violated incarcerated individual rule 113.23 (7 NYCRR 270.2 [B] [14] [xiii] [contraband]). Contrary to petitioner's contention, the misbehavior report and testimony at the hearing constitute substantial evidence to support the determination that he violated that rule by possessing cellophane (see generally Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 [1990]; Matter of Livingston v. Annucci, 222 A.D.3d 1391, 1392, 201 N.Y.S.3d 824 [4th Dept. 2023]). Any conflicting testimony from petitioner and the other individual witnesses merely presented credibility issues for the Hearing Officer to resolve (see Foster, 76 N.Y.2d at 966, 563 N.Y.S.2d 728, 565 N.E.2d 477; Matter of Delgado v. Annucci, 221 A.D.3d 1512, 1513, 200 N.Y.S.3d 851 [4th Dept. 2023]).

Petitioner next contends that there was not substantial evidence that he possessed contraband because the rule does not expressly prohibit his possession of the item in question, i.e., cellophane. We reject that contention. Inasmuch as the rule states “that any article not ‘specifically authorized’ by the facility superintendent, his or her designee, or departmental or local facility rules constitutes contraband ․, the fact that the cited rule did not expressly prohibit the item[ ] that petitioner was charged with possessing is of no moment” (Matter of McCollum v. Fischer, 61 A.D.3d 1194, 1194, 876 N.Y.S.2d 766 [3d Dept. 2009], lv denied 13 N.Y.3d 703, 2009 WL 2779303 [2009]). We note that petitioner “does not contend that possession of the [cellophane] had been authorized by the Superintendent at this correctional facility” (Matter of Mills v. Coombe, 231 A.D.2d 923, 924, 648 N.Y.S.2d 199 [4th Dept. 1996]).

To the extent that petitioner challenges the constitutionality of the rule on the grounds that it is vague and overbroad, we conclude that his challenge is unpreserved for our review (see Matter of Bottom v. Annucci, 26 N.Y.3d 983, 985, 19 N.Y.S.3d 209, 41 N.E.3d 66 [2015]; Matter of Rosa v. Fischer, 87 A.D.3d 1252, 1253, 930 N.Y.S.2d 310 [3d Dept. 2011], lv denied 19 N.Y.3d 802, 2012 WL 1504661 [2012]). We lack the discretionary authority to reach that issue (see Matter of Cornell v. Annucci, 173 A.D.3d 1760, 1761, 100 N.Y.S.3d 597 [4th Dept. 2019]; see generally Matter of Khan v. New York State Dept. of Health, 96 N.Y.2d 879, 880, 730 N.Y.S.2d 783, 756 N.E.2d 71 [2001]).

Finally, petitioner contends that the penalty imposed is excessive. Inasmuch as he failed to raise that contention in his administrative appeal, he “ ‘failed to exhaust his administrative remedies[,] and this Court has no discretionary power to reach that issue’ ” (Matter of Jay v. Fischer, 118 A.D.3d 1364, 1364, 986 N.Y.S.2d 899 [4th Dept. 2014], appeal dismissed 24 N.Y.3d 975, 995 N.Y.S.2d 699, 20 N.E.3d 644 [2014]; see Matter of Inesti v. Rizzo, 155 A.D.3d 1581, 1583, 65 N.Y.S.3d 367 [4th Dept. 2017]).