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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Andrew BENITEZ, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, et al., Respondents.


Decided: May 30, 2019

Before:  Egan Jr., J.P., Clark, Devine, Rumsey and Pritzker, JJ. Andrew Benitez, Auburn, petitioner pro se. Letitia James, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondents.


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.

During a search of petitioner's cell, a correction officer found certain documents containing gang-related references, including a reference to petitioner participating in a recent assault at the correctional facility that was being investigated at the time.  As a result, petitioner was charged in a misbehavior report with possessing gang-related material and conspiring to assault an inmate.  Following a tier III disciplinary hearing, petitioner was found guilty as charged.  The penalty was subsequently modified, and the modified determination was affirmed on administrative appeal.  This CPLR article 78 proceeding ensued.

We confirm.  The misbehavior report, hearing testimony and confidential testimony and documents considered by the Hearing Officer in camera provide substantial evidence to support the determination of guilt (see Matter of Sierra v. Rodriguez, 158 A.D.3d 880, 881, 70 N.Y.S.3d 593 [2018];  Matter of Devaughn v. Annucci, 157 A.D.3d 1182, 1183, 69 N.Y.S.3d 754 [2018] ).  Contrary to petitioner's contention, the misbehavior report was sufficiently detailed to give him notice of the conspiracy to assault an inmate charge and enable him to prepare a defense (see Matter of Hart v. Rodriguez, 169 A.D.3d 1148, 1149, 93 N.Y.S.3d 720 [2019];  Matter of Ortiz v. Annucci, 163 A.D.3d 1383, 1384, 80 N.Y.S.3d 746 [2018] ).

We reject petitioner's contention that he was improperly denied the right to call the victim of the assault as a witness.  There is no indication that the victim had previously agreed to testify, and he signed a witness refusal form indicating that he did not want to be involved (see Matter of Lebron v. Annucci, 163 A.D.3d 1387, 1387, 77 N.Y.S.3d 897 [2018];  Matter of Mears v. Venettozzi, 150 A.D.3d 1498, 1499, 54 N.Y.S.3d 219 [2017], lv denied 30 N.Y.3d 905, 2017 WL 5492211 [2017] ).  Finally, petitioner's claim that he was improperly denied the right to observe the cell search is unpersuasive.  Pursuant to Department of Corrections and Community Supervision Directive No. 4910(V)(D)(1), an inmate who is removed from his or her cell prior to a search must be allowed to observe the search, unless it is determined that his or her presence endangers the safety or security of the facility (see Matter of Alston v. Annucci, 153 A.D.3d 981, 982, 59 N.Y.S.3d 850 [2017];  Matter of Santiago v. Venettozzi, 149 A.D.3d 1429, 1430, 50 N.Y.S.3d 891 [2017] ).  The record reflects that, at the outset of the search, a pat frisk of petitioner revealed a lump under his clothes in his waistband area and that he was then taken to another area of the facility in order that a strip frisk, which was authorized by a sergeant, could be performed.  Under these circumstances, we find that there was a proper basis upon which to deny petitioner the right to observe the search (see Matter of Santiago v. Venettozzi, 149 A.D.3d at 1430, 50 N.Y.S.3d 891;  Matter of Llull v. Coombe, 238 A.D.2d 761, 762, 656 N.Y.S.2d 479 [1997], lv denied 90 N.Y.2d 804, 661 N.Y.S.2d 831, 684 N.E.2d 281 [1997] ).

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

Egan Jr., J.P., Clark, Devine, Rumsey and Pritzker, JJ., concur.

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