Partak v. Venettozzi
| Decision Date | 12 September 2019 |
| Docket Number | 527251 |
| Citation | 175 A.D.3d 1633,109 N.Y.S.3d 481 |
| Parties | In the Matter of Eric PARTAK, Petitioner, v. Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs |
| Court | New York Supreme Court — Appellate Division |
175 A.D.3d 1633
109 N.Y.S.3d 481
In the Matter of Eric PARTAK, Petitioner,
v.
Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs,
527251
Supreme Court, Appellate Division, Third Department, New York.
Calendar Date: August 22, 2019
Decided and Entered: September 12, 2019
Eric Partak, Malone, petitioner pro se.
Letitia James, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Devine, Aarons and Rumsey, JJ.
MEMORANDUM AND JUDGMENT
Egan Jr., J.P.
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.
Petitioner was charged in three misbehavior reports with refusing a direct order, refusing a search or frisk, violating visitation procedures, possession of contraband, smuggling of contraband and using an intoxicant. According to the reports, while a correction officer was conducting a strip frisk of petitioner after he left the visit room, the officer spotted an item protruding from petitioner's anal cavity. When questioned, petitioner refused to comply with certain directions and with the strip frisk, and he was thereafter evaluated by medical personnel and placed on a contraband watch for observation. Approximately nine hours later, defendant was believed to be under the influence of an intoxicant. At a tier III disciplinary hearing, petitioner pleaded guilty to possession of contraband and not guilty to the remaining charges. Following the hearing, petitioner was found guilty of all charges and a penalty was imposed. The determination was affirmed on administrative appeal, and this CPLR article 78 proceeding ensued.
Initially, because petitioner pleaded guilty to possession of contraband, he is precluded from challenging the sufficiency of the evidence supporting that part of the determination finding him guilty of that charge (see Matter of Kelly v. Rodriguez, 166 A.D.3d 1190, 1191, 87 N.Y.S.3d 717 [2018] ; Matter of LaGrave v. Venettozzi, 157 A.D.3d 1184, 1184, 70 N.Y.S.3d 587 [2018] ). As for the remaining charges, the three misbehavior reports and the hearing testimony of the officer who performed the strip frisk, the officer who responded to petitioner's special housing unit for a medical emergency and a...
To continue reading
Request your trial
-
Jacobson v. Blaise
...87 N.Y.S.3d 146, 112 N.E.3d 323 ; Matter of Lambraia v. State Univ. of N.Y. at Binghamton, 135 A.D.3d at 1145–1146, 23 N.Y.S.3d 679 ; 175 A.D.3d 1633 Matter of Lampert v. State Univ. of N.Y. at Albany, 116 A.D.3d 1292, 1294, 984 N.Y.S.2d 234 [2014], lv denied 23 N.Y.3d 908, 2014 WL 2936283 ......
-
James v. Annucci
...490, 761 N.Y.S.2d 881 [2003], lv denied 100 N.Y.2d 514, 769 N.Y.S.2d 200, 801 N.E.2d 421 [2003] ; see Matter of Partak v. Venettozzi, 175 A.D.3d 1633, 1635, 109 N.Y.S.3d 481 [2019] ; Matter of Moise v. Annucci, 168 A.D.3d 1337, 1338, 92 N.Y.S.3d 736 [2019] ). Petitioner also claims that the......
- Lundy v. Annucci
- Morales v. Venettozzi