Sawyer v. Annucci
| Decision Date | 23 June 2016 |
| Citation | 2016 N.Y. Slip Op. 04997,140 A.D.3d 1499,35 N.Y.S.3d 511 |
| Parties | In the Matter of Trazz SAWYER, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Trazz Sawyer, Albion, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: LAHTINEN, J.P., McCARTHY, ROSE, LYNCH and MULVEY, JJ.
Proceeding pursuant to CPLR article 78 () to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.
During a search of petitioner's cell, a correction officer found two metal rods less than four inches in length, one that was bent and the other that was melted into a plastic pen tube, concealed behind a piece of baseboard. As a result, petitioner was charged in a misbehavior report with possessing a weapon, possessing an altered item and possessing contraband. He was found guilty of the charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding followed.
Initially, contrary to petitioner's claim, the hearing transcript does not reveal the presence of inaudible gaps that are so significant as to preclude meaningful review (see Matter of Coons v. Fischer, 106 A.D.3d 1302, 1303, 964 N.Y.S.2d 778 [2013] ; Matter of Argentina v. Fischer, 98 A.D.3d 768, 769, 949 N.Y.S.2d 824 [2012] ). In addition, the misbehavior report was sufficiently detailed to provide petitioner with notice of the charges to enable him to prepare a defense (see Matter of Hyatt v. Annucci, 125 A.D.3d 1025, 1026, 1 N.Y.S.3d 583 [2015] ; Matter of Maletta v. Amoia, 122 A.D.3d 962, 963, 995 N.Y.S.2d 818 [2014] ). Turning to the merits, the misbehavior report, related documentation and hearing testimony provide substantial evidence supporting the determination of guilt (see Matter of Tavarez v. Annucci, 134 A.D.3d 1374, 1375, 21 N.Y.S.3d 767 [2015] ; Matter of Douglas v. Fischer, 126 A.D.3d 1244, 1245, 3 N.Y.S.3d 654 [2015], lv. denied 26 N.Y.3d 904, 2015 WL 5254842 [2015] ). The fact that the metal objects were found in an area within petitioner's control, even if not exclusive, supports the inference of possession (see Matter of Nieves v. Annucci, 123 A.D.3d 1368, 1369, 997 N.Y.S.2d 847 [2014] ; Matter of Velez v. Prack, 122 A.D.3d 1041, 1041, 994 N.Y.S.2d 740 [2014] ). Petitioner's claims that the objects could have been planted there by an aggrieved correction officer or another inmate or may have been left behind by the prior occupant of the cell presented credibility issues for the Hearing Officer to resolve (see Matter of Tavarez v. Annucci,
134 A.D.3d at 1375, 21 N.Y.S.3d 767; Matter of
Nieves v. Annucci, 123 A.D.3d at 1369, 997 N.Y.S.2d 847 ). Furthermore, there is no indication that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of
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