IN RE: Jordan EVANS (2025)

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 prison disciplinary rules.

While searching petitioner's cell, a correction officer discovered hidden within a box of rice a plastic baggie and wax paper containing a white powdery substance that was later determined to be cocaine.  As a result, petitioner was charged in a misbehavior report with drug possession, drug distribution, possession of contraband and smuggling.  Following a tier III disciplinary hearing, a Hearing Officer found petitioner guilty of each of the charges and, upon administrative review, such determination was upheld.  This CPLR article 78 proceeding ensued.

Initially, as respondent concedes, and our review of the record confirms, that part of the determination that found petitioner guilty of possessing contraband, distributing drugs and smuggling is not supported by substantial evidence and must be annulled.  The penalty included a recommendation for loss of good time and, therefore, the matter must be remitted for a redetermination of the penalty imposed on the remaining charge (see Matter of Moorer v. Annucci, 230 A.D.3d 1454, 1455, 219 N.Y.S.3d 748 [3d Dept. 2024], lv dismissed & denied 42 N.Y.3d 1093, 228 N.Y.S.3d 528, 253 N.E.3d 1261 [2025]).

As for the remaining charge, petitioner asserts that a confession from his witness proved his actual innocence and, therefore, the Hearing Officer's disposition is not supported by substantial evidence.  We disagree.  Such testimony from petitioner's witness presented a credibility issue for the Hearing Officer to resolve (see Matter of Smith v. State of N.Y. [DOCCS], 239 A.D.3d 1117, 1118, 237 N.Y.S.3d 277 [3d Dept. 2025];  Matter of Peters v. Annucci, 227 A.D.3d 1312, 1313, 212 N.Y.S.3d 243 [3d Dept. 2024]).  Indeed, this confession was not dispositive as the misbehavior report, testimony from various witnesses involved in the cell search and drug testing, and the positive drug test result provide substantial evidence to support the determination that petitioner violated the disciplinary rule prohibiting drug possession (see Matter of Pleasant v. Shope, 233 A.D.3d 1156, 1157, 224 N.Y.S.3d 196 [3d Dept. 2024];  Matter of McLean v. Martuscello, 229 A.D.3d 1030, 1031, 213 N.Y.S.3d 579 [3d Dept. 2024]).  Petitioner's remaining contentions regarding the completion of certain incident forms and evidence handling procedures were not raised during the hearing, and are therefore unpreserved for our review (see Matter of Hills v. Annucci, 225 A.D.3d 1008, 1009, 207 N.Y.S.3d 228 [3d Dept. 2024];  Matter of Legette v. Rodriguez, 213 A.D.3d 1066, 1067, 183 N.Y.S.3d 202 [3d Dept. 2023]).

ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of possessing contraband, distributing drugs and smuggling;  petition granted to that extent and respondent is directed to expunge all references to those charges from petitioner's institutional record, and matter remitted to respondent for an administrative redetermination of the penalty imposed on the remaining violation;  and, as so modified, confirmed.

Garry, P.J., Clark, Pritzker, Lynch and Fisher, JJ., concur.