IN RE: Santinarra SEALEY (2019)

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 Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.

After a suspicion-based search of petitioner's cube yielded two cutting-type weapons and a substance that tested positive for Suboxone, petitioner was charged in a misbehavior report with possessing a weapon, possessing an altered item and possessing drugs. Following a tier III disciplinary hearing, petitioner was found guilty of all charges and a penalty was imposed. That determination was affirmed upon petitioner's administrative appeal, and this CPLR article 78 proceeding ensued.

To the extent that petitioner's brief may be read as challenging the evidence adduced at the disciplinary hearing, we find that the misbehavior report, together with the hearing testimony, photographic evidence and related documentation, constitute substantial evidence to support the determination see (Matter of Ortiz v. Annucci, 160 A.D.3d 1192, 1192, 71 N.Y.S.3d 391 [2018]; Matter of Mason v. Annucci, 153 A.D.3d 1013, 1013, 56 N.Y.S.3d 906 [2017]; Matter of Bartello v. Annucci, 142 A.D.3d 1194, 1194, 37 N.Y.S.3d 463 [2016]). Petitioner's claim that he improperly was denied his conditional right to be present for the search of his cube is unpersuasive. Petitioner acknowledges – and a review of the record confirms – that petitioner was not removed from his cube for the purpose of conducting the search; rather, immediately prior to the search, petitioner was talking on a pay phone in his housing unit. “Inasmuch as petitioner was already out of his cube at the time of the search, he was not improperly denied the opportunity to observe it” (Matter of Ortiz v. Annucci, 160 A.D.3d at 1192–1193, 71 N.Y.S.3d 391 [citation omitted]; see Matter of Mason v. Annucci, 153 A.D.3d at 1014, 56 N.Y.S.3d 906; Matter of Bartello v. Annucci, 142 A.D.3d at 1194, 37 N.Y.S.3d 463; Matter of Horton v. Annucci, 133 A.D.3d 1002, 1003, 20 N.Y.S.3d 207 [2015]; Matter of Johnson v. Fischer, 109 A.D.3d 1070, 1071, 971 N.Y.S.2d 590 [2013]). Finally, although petitioner takes issue with the redactions made to certain materials provided in response to his Freedom of Information Law request, this challenge is not properly before us, as the underlying petition sought only annulment of the disciplinary determination (compare Matter of Dawes v. Annucci, 171 A.D.3d 1365, 1366–1367 [2019]; Matter of Letizia v. Graham, 119 A.D.3d 1296, 1297, 990 N.Y.S.2d 364 [2014], lv denied 24 N.Y.3d 912, 2015 WL 94849 [2015]).

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

Egan Jr., J.P., Lynch, Clark and Pritzker, JJ., concur.