IN RE: Akili NIX (2021)

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

A search of petitioner's cube disclosed a stabbing-type weapon hidden behind a cork board and an orange paper substance found in his locker that later tested positive for buprenorphine.  As a result, petitioner was charged in a misbehavior report with smuggling, possessing drugs, possessing a weapon and possessing contraband.  Following a tier III disciplinary hearing, petitioner was found guilty of all charges except smuggling.  That determination was affirmed upon administrative appeal.  This CPLR article 78 proceeding ensued.

Initially, respondent concedes, and our review of the record confirms, that the part of the determination finding petitioner guilty of possessing contraband is not supported by substantial evidence and must be annulled.  However, because the penalty has been served and no loss of good time was imposed, remittal of the matter for a redetermination thereof is not necessary (see Matter of Abdullah v. Department of Corr. & Community Supervision, 193 A.D.3d 1167, 1168, 145 N.Y.S.3d 659 [2021]).

Petitioner's challenge to the determination of guilt insofar as it found him guilty of possessing a weapon is unpersuasive.¹  To that end, the misbehavior report, related documentation and testimony at the hearing provide substantial evidence to support the finding that he possessed a weapon (see Matter of Rodari v. Venettozzi, 186 A.D.3d 1860, 1861, 129 N.Y.S.3d 359 [2020];  Matter of Sawyer v. Annucci, 140 A.D.3d 1499, 1500, 35 N.Y.S.3d 511 [2016]).  “The fact that the weapon was found in an area within petitioner's control, even if not exclusive, supports the inference of possession” (Matter of Rodari v. Venettozzi, 186 A.D.3d at 1861, 129 N.Y.S.3d 359 [citations omitted];  see Matter of Dowling v. Venettozzi, 177 A.D.3d 1063, 1063–1064, 109 N.Y.S.3d 920 [2019], lv denied 35 N.Y.3d 901, 2020 WL 1582025 [2020];  Matter of Perez v. Annucci, 159 A.D.3d 1170, 1171, 72 N.Y.S.3d 637 [2018]).  Petitioner's contention that the weapon was not his created a credibility issue for the Hearing Officer to resolve (see Matter of Dowling v. Venettozzi, 177 A.D.3d at 1064, 109 N.Y.S.3d 920).

Turning to petitioner's procedural claims, petitioner waived any challenge to the refusals of two inmate witnesses to testify at the hearing (see Matter of Cosme v. New York State Dept. of Corr. & Community Supervision, 168 A.D.3d 1327, 1328, 92 N.Y.S.3d 745 [2019];  Matter of McMillian v. Lempke, 149 A.D.3d 1492, 1494, 52 N.Y.S.3d 771 [2017], appeal dismissed 30 N.Y.3d 930, 62 N.Y.S.3d 292, 84 N.E.3d 964 [2017];  Matter of Torres v. Annucci, 144 A.D.3d 1289, 1290, 40 N.Y.S.3d 673 [2016]).  When the Hearing Officer inquired about the inmate witnesses requested by petitioner, petitioner responded, “Unfortunately, they refused” and petitioner did not otherwise challenge the inmates' refusals or request that the Hearing Officer ascertain the reasons for their refusals.  We also find without merit petitioner's contention that he was denied the right to a fair hearing, as the record reflects that the determination of guilt flowed from the evidence presented and not from any alleged prejudicial or biased conduct on the part of the Hearing Officer (see Matter of Guadalupe v. Venettozzi, 158 A.D.3d 883, 885, 70 N.Y.S.3d 591 [2018];  Matter of Wigfall v. Department of Corr. & Community Supervision, 153 A.D.3d 1464, 1466, 60 N.Y.S.3d 720 [2017]).  Petitioner's remaining contentions are either unpreserved or without merit.

ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of possessing contraband;  petition granted to that extent and the Commissioner of Corrections and Community Supervision is directed to expunge all references to this charge from petitioner's institutional record;  and, as so modified, confirmed.

FOOTNOTES

1.   Petitioner does not challenge that part of the determination finding him guilty of possessing drugs.

Clark, J.P., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ., concur.