Calendar Date: June 6, 2017
Muldoon, Getz & Reston, Rochester (Gary Muldoon of
counsel), for petitioner.
T. Schneiderman, Attorney General, Albany (Owen Demuth of
counsel), for respondent.
Before: McCarthy, J.P., Garry, Lynch, Rose and Devine, JJ.
MEMORANDUM AND JUDGMENT
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 finding petitioner
guilty of violating certain prison disciplinary rules.
upon a suspicion that petitioner might be in possession of
contraband, correction officials conducted a search of his
cell. During the search, they recovered a number of items
including, among other things, a heavy duty needle attached
to a cardboard handle, office supplies, baking dishes, dry
goods, medicines and an altered fan. As a result, petitioner
was charged in a misbehavior report with possessing a weapon,
possessing stolen property, possessing unauthorized
medication, engaging in an unauthorized exchange and
possessing an altered item. He was found guilty of the
charges following a tier III disciplinary hearing and the
determination was later affirmed on administrative appeal
with a modified penalty. This CPLR article 78 proceeding
the detailed misbehavior report and related documentation,
together with the admissions made by petitioner therein and
during the hearing and the other testimony adduced at the
hearing, provide substantial evidence supporting that part of
the determination finding petitioner guilty of engaging in an
unauthorized exchange, possessing a weapon, possessing stolen
property and possessing an altered item (see Matter of
Afrika v Blackman, 149 A.D.3d 1369, 1370 ;
Matter of Sealey v Bezio, 95 A.D.3d 1577, 1578
; Matter of Lopez v Fischer, 91 A.D.3d 1223,
1224 ). Although petitioner now claims that the weapon
was merely a means to store a sewing needle, this explanation
was not provided to the Hearing Officer. Moreover, an
inmate's explanation as to the innocuous use of such an
item will not preclude a finding that it is a dangerous
weapon (see Matter of Walker v Fischer, 107 A.D.3d
1273, 1274 ).
record, however, does not contain substantial evidence
establishing that petitioner possessed unauthorized
medication . Accordingly, that part of the
determination finding him guilty of this charge must be
annulled. Moreover, inasmuch as a loss of good time was
imposed as part of the penalty, the matter must be remitted
to respondent for a redetermination of the penalty on the
other violations (see Matter of Davis v Annucci, 140
A.D.3d 1432, 1433 , appeal dismissed 28 N.Y.3d
1109 ; Matter of Ferril v Annucci, 134 A.D.3d
1264, 1265 ).
reject petitioner's challenge to the assignment of his
employee assistant and adequacy of the assistance provided.
Generally, "the right to assistance is a right of
constitutional dimension and the failure to provide
assistance is a violation of 7 NYCRR 251-4.2"
(Matter of Rivera v Prack, 122 A.D.3d 1226, 1227
 [internal quotation marks and citation omitted]).
Here, the record includes a tier assistance form signed by
petitioner indicating that he selected five individuals and
that he "understood that his [t]ier assistant will be
the first available person of the" five individuals. One
of the five selected individuals was assigned to assist
petitioner. The record also includes an assistant form signed
by petitioner detailing the witnesses and materials that he
requested prior to the hearing. Notwithstanding the
aforementioned documents, petitioner claimed at the hearing
that he did not select the assistant that was assigned to
him. He did not otherwise object or challenge the assistance
that was provided. In contrast, the record indicates that he
accepted the assistance that was provided without objection
and he has not demonstrated that the assistance was
inadequate or that he was prejudiced in any way (see
Matter of White v Selsky, 3 A.D.3d 762, 763 ;
Matter of Rodriguez v Goord, 250 A.D.2d 905, 905
considered petitioner's remaining contentions and find
that they are either unpreserved for our review or are
lacking in merit.
McCarthy, J.P., Garry, Rose and Devine, JJ., concur.
that the determination is modified, without costs, by
annulling so much thereof as found petitioner guilty of
possessing unauthorized medication and imposed a penalty;
petition granted to that extent, respondent is directed to
expunge all references to this charge from petitioner's
institutional record and matter remitted to respondent for an