IN RE: Jacqueline WESLEY–ROSA (2024)

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 certain disciplinary rules.

Petitioner was charged in a misbehavior report with smuggling, possessing contraband and violating the rules of a family reunion program.  The charges stemmed from an incident wherein petitioner, upon leaving a family reunion visit, was found to be in possession of, among other things, various food items.  At the conclusion of the tier II disciplinary hearing that followed, the Hearing Officer found petitioner guilty of all charges and, as to penalty, petitioner was counseled and reprimanded.  Upon review, the Hearing Officer's decision was affirmed.  Petitioner then commenced this CPLR article 78 proceeding to challenge respondent's determination.

We confirm.  The misbehavior report, the testimony of its author and a video of the incident provide substantial evidence to support respondent's determination (see Matter of Knight v. Rodriguez, 217 A.D.3d 1300, 1301, 191 N.Y.S.3d 841 [3d Dept. 2023];  Matter of Carzoglio v. Annucci, 216 A.D.3d 1272, 1273, 189 N.Y.S.3d 754 [3d Dept. 2023]).  As for petitioner's procedural claims, petitioner contends that because she initially was allowed to leave the visitation area with only a verbal warning, the subsequent issuance of the misbehavior report violated her double jeopardy rights.  However, “prison disciplinary proceedings are civil and the resulting sanctions do not constitute criminal punishment triggering double jeopardy protections” (Matter of Slater v. Annucci, 202 A.D.3d 1249, 1251, 163 N.Y.S.3d 308 [3d Dept. 2022];  see Matter of De Grijze v. Selsky, 305 A.D.2d 761, 762, 759 N.Y.S.2d 570 [3d Dept. 2003], appeal dismissed 100 N.Y.2d 613, 767 N.Y.S.2d 395, 799 N.E.2d 618 [2003]).  To the extent that the misbehavior report contained certain clerical errors, we are satisfied that it provided petitioner sufficient notice of the charges against her and afforded her an opportunity to prepare a defense;  we further note that petitioner has failed to demonstrate that she was prejudiced by any discrepancies in this regard (see Matter of Bellamy v. Noeth, 195 A.D.3d 1289, 1289–1290, 145 N.Y.S.3d 875 [3d Dept. 2021]).  Finally, “it is the function of the review officer, based upon the seriousness of the charges and the appropriate corresponding penalty in the event the charges are substantiated, to determine the tier classification” (Matter of Pettus v. Selsky, 28 A.D.3d 1043, 1043–1044, 813 N.Y.S.2d 274 [3d Dept. 2006];  accord Matter of Credell v. Hurt, 167 A.D.3d 1113, 1114, 89 N.Y.S.3d 416 [3d Dept. 2018], lv denied 32 N.Y.3d 919, 2019 WL 1407347 [2019];  see 7 NYCRR 251–2.2).  Both possession of contraband and smuggling may be classified as either tier I, II or III offenses (see 7 NYCRR 270.2[B][14] [xiii];  [15]), and we perceive no abuse of the review officer's discretionary classification of tier II in this matter.  Petitioner's remaining contentions, to the extent not specifically addressed, have been examined and found to be lacking in merit.

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

Egan Jr., J.P., Clark, Lynch, Reynolds Fitzgerald and Fisher, JJ., concur.