IN RE: Will MULLINS (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 finding petitioner guilty of violating a prison disciplinary rule.

After petitioner was observed acting suspiciously in the prison yard, he was taken inside to a cell block where a correction officer detected a foreign object in petitioner's groin area during a pat frisk. Petitioner was taken to another room, where a strip frisk produced, among other things, two scalpel-like weapons hidden in his underclothes. Petitioner was charged in a misbehavior report with possessing a weapon and possessing drugs and, following a tier III disciplinary hearing, he was found guilty of possessing a weapon but not guilty of the other charge. The determination was affirmed on administrative appeal, and this CPLR article 78 proceeding ensued.¹

We confirm. Petitioner's contention that he was denied the right to present evidence in that he was denied a video recording of the prison yard is meritless. The record reflects that the Hearing Officer submitted this request and was advised by facility staff that the requested video did not exist (see Matter of Ocasio v. Bullis, 162 A.D.3d 1424, 1425, 80 N.Y.S.3d 505 [2018]; Matter of Reyes v. Keyser, 150 A.D.3d 1502, 1505, 55 N.Y.S.3d 495 [2017]; Matter of Benitez v. Annucci, 139 A.D.3d 1215, 1216, 29 N.Y.S.3d 831 [2016]). Moreover, the video would have been irrelevant to the charges (see Matter of Samuels v. Annucci, 142 A.D.3d 1200, 1201, 37 N.Y.S.3d 465 [2016]; Matter of Allen v. Venettozzi, 139 A.D.3d 1208, 1209, 29 N.Y.S.3d 829 [2016], lv denied 28 N.Y.3d 903, 2016 WL 4998231 [2016]). Petitioner also claims that he was denied a copy of the log books to show that the correction officer was not at his assigned post when he approached petitioner in the prison yard. However, he did not request these documents prior to or at the hearing (see Matter of Harris v. Venettozzi, 167 A.D.3d 1127, 1128, 89 N.Y.S.3d 414 [2018]; Matter of Gallo v. Annucci, 164 A.D.3d 1560, 1561, 83 N.Y.S.3d 745 [2018]). In any event, the log books were not relevant to whether he possessed a weapon (see Matter of Samuels v. Annucci, 142 A.D.3d at 1201, 37 N.Y.S.3d 465). Petitioner's contention that he did not receive a fair hearing in that the Hearing Officer refused to consider his defenses is belied by the record. To that end, the Hearing Officer expressly considered and rejected all of petitioner's defenses based upon the evidence and conducted the hearing in a fair and impartial manner (see Matter of McKanney v. Annucci, 170 A.D.3d 1354, 1355, 95 N.Y.S.3d 652 [2019]; Matter of Weston v. Annucci, 153 A.D.3d 1537, 1538, 62 N.Y.S.3d 202 [2017]). Petitioner's remaining claims, to the extent they have been preserved for our review, have been considered and determined to lack merit.

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

FOOTNOTES

1.   Given that the petition appears to raise an issue of substantial evidence, the proceeding was properly transferred to this Court. However, petitioner has abandoned any such challenge by failing to raise it in his brief (see Matter of Sudler v. Annucci, 166 A.D.3d 1351, 1352 n, 86 N.Y.S.3d 686 [2018]).

Lynch, J.P., Devine, Aarons and Pritzker, JJ., concur.