IN RE: Terrance DANIELS (2023)

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 the Acting Commissioner of Corrections and Community Supervision finding petitioner guilty of violating a prison disciplinary rule.

During a block-wide cell search, a correction officer observed petitioner approach the bars of his cell with an object in his hand and then throw the object on the company floor.  The correction officer maintained visual contact of the object until he was able to recover and secure the object, which was discovered to be a metal icepick-style weapon, sharpened to a point at one end and wrapped in a black sock.  As a result of the incident, petitioner was charged in a misbehavior report with, among other offenses, possessing a weapon.  Following a tier III disciplinary hearing, petitioner was found guilty of possessing a weapon.  Upon administrative appeal, that determination was affirmed, and this CPLR article 78 proceeding ensued.

We confirm.  The misbehavior report and related documentation, together with the hearing testimony, including the testimony of the correction officer who observed the incident and recovered the weapon, provide substantial evidence supporting the determination of guilt (see Matter of Santos v. Annucci, 209 A.D.3d 1084, 1084–1085, 175 N.Y.S.3d 616 [3d Dept. 2022];  Matter of Ramos v. Annucci, 203 A.D.3d 1370, 1370, 160 N.Y.S.3d 925 [3d Dept. 2022];  Matter of Breazil v. Griffin, 175 A.D.3d 1697, 1697–1698, 109 N.Y.S.3d 760 [3d Dept. 2019]).  The contrary testimony of petitioner and his witnesses presented credibility issues for the Hearing Officer to resolve (see Matter of McClary v. Annucci, 189 A.D.3d 1812, 1813, 133 N.Y.S.3d 925 [3d Dept. 2020], lv denied 37 N.Y.3d 905, 2021 WL 3925878 [2021];  Matter of Beltre v. Rodriguez, 185 A.D.3d 1370, 1370, 126 N.Y.S.3d 423 [3d Dept. 2020]).  Petitioner's procedural contentions, including his arguments that he was improperly denied body camera footage of the incident and deprived of his rights to call witnesses and present documentary evidence, are unpreserved for our review due to petitioner's failure to request that evidence or to timely object on those grounds at his disciplinary hearing (see Matter of Estrada v. Annucci, 199 A.D.3d 1145, 1146, 156 N.Y.S.3d 576 [3d Dept. 2021];  Matter of Harris v. Venettozzi, 167 A.D.3d 1127, 1128, 89 N.Y.S.3d 414 [3d Dept. 2018];  Matter of McDay v. Annucci, 156 A.D.3d 1082, 1083, 65 N.Y.S.3d 463 [3d Dept. 2017];  Matter of Mendez v. Annucci, 126 A.D.3d 1216, 1217, 3 N.Y.S.3d 640 [3d Dept. 2015]).

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

Garry, P.J., Egan Jr., Clark, Fisher and McShan, JJ., concur.