IN RE: Sylvester BELGRAVE (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.

Petitioner was charged in a misbehavior report with violating various prison disciplinary rules, including possession of a weapon and possession of contraband.  According to the misbehavior report, a correction officer discovered a “flat metal cutting type of weapon measuring approximately [one] inch in length with a1/414 inch blade” inside an empty pill bottle during a search conducted in petitioner's cube.  Following a tier III disciplinary hearing, as relevant here, petitioner was found guilty of possession of a weapon and possession of contraband as charged in the misbehavior report and a penalty was imposed.  After that part of the determination and the penalty were affirmed on administrative appeal, petitioner commenced this CPLR article 78 proceeding.

The detailed misbehavior report, unusual incident report and supporting documentation, as well as the hearing testimony, provide substantial evidence to support the determination of guilt (see Matter of Dean v. Martuscello, 236 A.D.3d 1223, 1223, 229 N.Y.S.3d 706 [3d Dept. 2025];  Matter of Leckie v. Annucci, 230 A.D.3d 1460, 1460, 217 N.Y.S.3d 305 [3d Dept. 2024];  Matter of Chan v. Annucci, 219 A.D.3d 1624, 1625, 196 N.Y.S.3d 254 [3d Dept. 2023], lv denied 41 N.Y.3d 902, 2024 WL 719673 [2024]).  The fact that the weapon was found within petitioner's area of control gives rise to a reasonable inference of possession (see Matter of Rodari v. Venettozzi, 186 A.D.3d 1860, 1861, 129 N.Y.S.3d 359 [3d Dept. 2020];  Matter of Dowling v. Venettozzi, 177 A.D.3d 1063, 1063–1064, 109 N.Y.S.3d 920 [3d Dept. 2019], lv denied 35 N.Y.3d 901, 2020 WL 1582025 [2020];  Matter of Wood v. Annucci, 158 A.D.3d 856, 857, 70 N.Y.S.3d 599 [3d Dept. 2018]).

Turning to petitioner's procedural claims, we reject the contention that petitioner was improperly denied access at the hearing to the physical evidence in question.  The misbehavior report, with related documentation, and testimony adduced at the hearing detailed the characteristics of the weapon, while a photograph supported the described features (see Matter of Young v. Rodriguez, 165 A.D.3d 1338, 1339, 85 N.Y.S.3d 603 [3d Dept. 2018];  Matter of Mallen v. Hearing Officer, Great Meadow Correctional Facility, 304 A.D.2d 879, 879, 759 N.Y.S.2d 772 [3d Dept. 2003];  see also Matter of Dean v. Martuscello, 236 A.D.3d at 1224, 229 N.Y.S.3d 706).  There is no merit to the contention that the Hearing Officer's decision to personally view the weapon outside of petitioner's presence was impermissible (see Matter of Steward v. Selsky, 266 A.D.2d 605, 606, 697 N.Y.S.2d 745 [3d Dept. 1999];  see also Matter of Bunting v. Goord, 25 A.D.3d 845, 846, 809 N.Y.S.2d 588 [3d Dept. 2006]).  Contrary to petitioner's contention, the chain of custody of the weapon was appropriately established through the hearing testimony, misbehavior report and related documentation (see Matter of Moorer v. Annucci, 230 A.D.3d 1454, 1456, 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];  Matter of Smith v. Annucci, 207 A.D.3d 979, 980, 173 N.Y.S.3d 81 [3d Dept. 2022]).

Petitioner also argues that he was improperly denied the opportunity to observe the cell search in violation of Department of Corrections and Community Supervision Directive No. 4910.  As the record contains conflicting testimony about whether petitioner was offered the opportunity to observe the search, the same was rendered a credibility issue for the Hearing Officer to resolve (see Matter of Alston v. Annucci, 153 A.D.3d 981, 982, 59 N.Y.S.3d 850 [3d Dept. 2017];  Matter of Garcia v. Garner, 122 A.D.3d 988, 989, 995 N.Y.S.2d 829 [3d Dept. 2014];  Matter of Green v. Taylor, 108 A.D.3d 960, 961, 968 N.Y.S.2d 811 [3d Dept. 2013]).

To the extent that petitioner claims that the misbehavior report was written in retaliation for ongoing conflicts with several correction officers, this too created a credibility issue (see Matter of Cato v. Martuscello, 232 A.D.3d 1191, 1192, 223 N.Y.S.3d 334 [3d Dept. 2024];  Matter of Peters v. Annucci, 227 A.D.3d 1312, 1313, 212 N.Y.S.3d 243 [3d Dept. 2024]).  We are unpersuaded that petitioner was improperly denied his request to call his Office of Mental Health counselor as a witness to corroborate his retaliation claim.  As indicated in the record, the counselor refused to testify (see Matter of Tafari v. Fischer, 93 A.D.3d 1054, 1054, 940 N.Y.S.2d 692 [3d Dept. 2012], lv dismissed 19 N.Y.3d 1007, 951 N.Y.S.2d 704, 976 N.E.2d 231 [2012]) and, in any event, did not have firsthand knowledge of the incident (see Matter of Carzoglio v. Annucci, 216 A.D.3d 1272, 1273, 189 N.Y.S.3d 754 [3d Dept. 2023];  Matter of Bradshaw v. Annucci, 163 A.D.3d 1380, 1381, 80 N.Y.S.3d 748 [3d Dept. 2018]).  Further, “[t]he Hearing Officer's failure to provide petitioner with a written explanation for the denial of the[ ] witness[ ] does not require annulment as the reason for the denial is expressly stated in the record” (Matter of Pierre v. Annucci, 219 A.D.3d 990, 991, 193 N.Y.S.3d 746 [3d Dept. 2023] [internal quotations marks and citations omitted];  see Matter of Davis v. Prack, 95 A.D.3d 1574, 1575, 944 N.Y.S.2d 805 [3d Dept. 2012], lv denied 19 N.Y.3d 812, 2012 WL 4017458 [2012]).

Petitioner's remaining arguments, to the extent not specifically addressed, are either unpreserved or have been found to be lacking in merit.

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

Ceresia, J.

Aarons, J.P., Reynolds Fitzgerald, Fisher and McShan, JJ., concur.