IN RE: Alex DEVAUGHN (2026)

MEMORANDUM AND JUDGMENT

Calendar Date:  October 9, 2026

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.

While petitioner was being escorted back from a medical evaluation to special cell watch, a correction officer observed a folding ceramic razor-type weapon fall from petitioner's right side, then confiscated it.  Petitioner was thereafter charged in a misbehavior report with smuggling, possessing a weapon and possessing contraband.  At the ensuing tier III disciplinary hearing, petitioner requested, among other things, to have an incarcerated individual serve as his representative.  After speaking over the Hearing Officer, as well as his chosen representative, on repeated occasions during the hearing, the Hearing Officer released the representative because petitioner was acting in a manner that demonstrated that he wanted to represent himself.  At the conclusion of the hearing, petitioner was found guilty of smuggling and possessing a weapon and not guilty of possessing contraband.  The determination was upheld upon administrative review, and this CPLR article 78 proceeding ensued.

We confirm.  The misbehavior report, hearing testimony, video footage and other documentary evidence provide substantial evidence to support the determination of guilt (see Matter of Estremera v. Fraser, 225 AD3d 979, 980 [3d Dept 2024];  Matter of Starling v New York Dept. of Corr. & Community Supervision, 123 AD3d 1195, 1196 [3d Dept 2014];  Matter of Hall v. Fischer, 87 AD3d 1235, 1236 [3d Dept 2011] ).  Petitioner's denial that the weapon was his presented a credibility issue for the Hearing Officer to resolve (see e.g. Matter of Starling v New York Dept. of Corr. & Community Supervision, 123 AD3d at 1196;  Matter of Fisher v. Fischer, 105 AD3d 1286, 1286 [3d Dept 2013] ).

We are also unpersuaded by petitioner's contention that his hearing representative was improperly removed from the hearing.  The applicable directive provides that, if an incarcerated individual is represented, “the charged individual will not be permitted to participate in the hearing as co-counsel” (Dept of Corr & Community Supervision, Standards Behavior & Allowances, Directive No. 4932, at [VII][C][1] [Nov. 1, 2023] ).  Upon reviewing the transcript of the hearing, petitioner's repeated comments, even after he was warned that it was the duty of the representative to argue his case, justified the Hearing Officer's decision to release the representative from representing petitioner at the hearing (cf.  Matter of Clark v. Jordan, 212 AD3d 976, 978 [3d Dept 2023];  Matter of Rizzuto v. Melville, 210 AD3d 1152, 1154 [3d Dept 2022];  Matter of McMaster v. Rodriguez, 159 AD3d 1173, 1174 [3d Dept 2018] ).  Moreover, petitioner has failed to demonstrate how he was prejudiced by the removal of the representative from the hearing.  Petitioner also contends that he was improperly denied various documents.  “To the extent that the documents existed, the record reflects that the Hearing Officer provided petitioner with the documents that were relevant and not redundant in terms of testimony and other documentary evidence already presented” (Matter of Harrison v. Venettozzi, 150 AD3d 1508, 1510 [3d Dept 2017] [citations omitted], lv denied 30 NY3d 901 [2017] ).  Petitioner's remaining arguments, to the extent that they are preserved for our review and are not specifically addressed, have been examined and found to be lacking in merit.

Garry, P.J., Pritzker, Fisher, Mackey and Corcoran, JJ., concur.

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