In the Matter of Vines v. Goord

• Decision Date: 30 June 2005
• Docket Number: 96740.
• Citation: 798 N.Y.S.2d 526,19 A.D.3d 951,2005 NY Slip Op 05473
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of EARNEST VINES, Petitioner, v. GLENN S. GOORD, as Commissioner of Correctional Services, Respondent.

19 A.D.3d 951

798 N.Y.S.2d 526

2005 NY Slip Op 05473

In the Matter of EARNEST VINES, Petitioner, v. GLENN S. GOORD, as Commissioner of Correctional Services, Respondent.

96740.

Appellate Division of the Supreme Court of the State of New York, Third Department.

June 30, 2005.

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 which found petitioner guilty of violating certain prison disciplinary rules.

PETERS, J.

Petitioner, a prison inmate, was charged in a misbehavior report with possessing contraband classified as a weapon and an authorized item which had been altered. The charges arose after correction officer D. Tinucci, acting on an anonymous note, searched petitioner's cube and recovered from his locker a folded can lid attached to a handle made of masking tape. Following a tier III disciplinary hearing, petitioner was found guilty of both charges and a penalty was imposed. The determination was affirmed on administrative appeal, and this CPLR article 78 proceeding by petitioner ensued.

We confirm. To the extent that petitioner raises a substantial evidence issue, we find that the misbehavior report and the testimony of the authoring correction officer, together with the documentary evidence presented at the hearing, provide substantial evidence to support the determination of petitioner's guilt (see Matter of Cummings v Goord, 10 AD3d 748, 749 [2004]).

Turning to petitioner's procedural claims, having raised the issue both at the hearing and on his administrative appeal, petitioner preserved his challenge to Tinucci's search of his cube (compare Matter of Cayenne v Goord, 16 AD3d 782, 783 [2005]; Matter of Di Rose v New York State Dept. of Correction, 228 AD2d 868, 869 [1996]). Pursuant to Department of Correctional Services Directive No. 4910 (V) (C) (1) (formerly No. 4910 [IV] [C] [1]), where a search of a general confinement housing unit cell is conducted and the inmate is removed from the cell prior to the search, the inmate shall be placed outside of the immediate area to be searched but allowed to observe the search unless he or she is believed to present a danger to the safety and security of the facility. The record reveals that, upon receiving notice of the anonymous note, correction officer A. Strasser located petitioner in his cube, took him into the foyer area, pat frisked him for contraband and then released him to the mess hall. Although petitioner testified that he did not intend to go to the mess hall at that time and that Strasser instructed him to do so, the Hearing Officer was entitled to accord greater weight to Strasser's testimony indicating that petitioner told him he was going to the mess hall before the frisk occurred and did not request to stay in his cube. Thus, we find his claim under Directive No. 4910 to be unavailing (see Matter of Mitchell v Goord, 266 AD2d 614, 615 [1999]; compare Matter of Johnson v Goord, 288 AD2d 525, 525 [2001]; Matter of Gonzalez v Wronski, 247 AD2d 767, 768 [1998]).

We likewise reject petitioner's claim under 7 NYCRR 251-3.1 (c) (1) and (3) that the misbehavior report did not include a sufficiently detailed account of the incident. Notwithstanding minor discrepancies in the record regarding the time and sequence in which the incident unfolded, we find that the misbehavior report as a whole gave petitioner adequate...