Ortiz v. Venettozzi

• Decision Date: 01 February 2018
• Docket Number: 524913
• Citation: 70 N.Y.S.3d 598,158 A.D.3d 865
• Parties: In the Matter of Gilberto ORTIZ, Petitioner, v. Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
• Court: New York Supreme Court — Appellate Division

158 A.D.3d 865

70 N.Y.S.3d 598

In the Matter of Gilberto ORTIZ, Petitioner,

v.Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.

524913

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

Calendar Date: December 13, 2017

Decided and Entered: February 1, 2018

Gilberto Ortiz, Ossining, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

Before: Lynch, J.P., Devine, Clark, Aarons and Rumsey, JJ.

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.

While a correction officer who was searching petitioner's cell noticed that petitioner kept adjusting his pants, he asked if petitioner had any contraband on him. Petitioner initially said no, but ultimately admitted that he did and pulled a clear package containing an orange powdery substance from the back of his pants, which petitioner identified as crushed suboxone pills. As a result, petitioner was charged in a misbehavior report with smuggling, possessing contraband, possessing drugs and possessing unauthorized medication. Following a tier III disciplinary hearing, the Hearing Officer found petitioner guilty of smuggling and possessing contraband but not guilty of the remaining charges. That determination was affirmed upon petitioner's administrative appeal, and this CPLR article 78 proceeding ensued.

We confirm. The detailed misbehavior report, the testimony of its author and the documentary/photographic evidence contained in the record provide substantial evidence to support the finding of guilt ( see Matter of Campbell v. Prack, 118 A.D.3d 1202, 1202, 986 N.Y.S.2d 896 [2014]; Matter of Ferrer v. Prack, 107 A.D.3d 1254, 1254, 966 N.Y.S.2d 923 [2013] ; Matter of Tafari v. Selsky, 77 A.D.3d 991, 991, 908 N.Y.S.2d 748 [2010], lv denied 16 N.Y.3d 706, 2011 WL 652598 [2011] ). Notwithstanding the failure to identify the crushed substance by drug testing, petitioner's admission that the substance was suboxone and the circumstances of its recovery were sufficient to establish that he possessed contraband ( see Matter of Campbell v. Prack, 118 A.D.3d at 1202–1203, 986 N.Y.S.2d 896; Matter of Ferrer v. Prack, 107 A.D.3d at 1254, 966 N.Y.S.2d 923). Moreover, the reasonable inferences to be drawn from that evidence support the smuggling charge ( see Matter of Roman v. Goord, 11 A.D.3d 858, 859, 783 N.Y.S.2d 150 [2004] ). Petitioner's denial that he admitted to the identity of the crushed substance "presented a credibility determination for the Hearing Officer to resolve" ( Matter of Boitschenko v. Annucci, 156 A.D.3d 1066, 1066, 65 N.Y.S.3d 488 [2017] ; see...