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In re Shearer

Supreme Court of New York, Third Department

November 16, 2017

In the Matter of GIL SHEARER, Petitioner,
ANTHONY J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.

          Calendar Date: October 11, 2017

          Gil Shearer, Attica, petitioner pro se.

          Eric T. Schneiderman, Attorney General, Albany (Patrick A. Woods of counsel), for respondent.

          Before: McCarthy, J.P., Lynch, Rose, Clark and Pritzker, JJ.


          McCarthy, 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 respondent finding petitioner guilty of violating certain prison disciplinary rules.

         Petitioner was charged in a misbehavior report with possessing a weapon, smuggling and violating frisk procedures. According to the misbehavior report, an X ray revealed that petitioner had three scalpel blades in his abdomen area. Petitioner was placed on contraband watch, during which three scalpel blade handles were found in petitioner's feces. A subsequent X ray revealed that the scalpel blades were no longer in petitioner's body and a search of the drain pipe leading out of petitioner's room revealed three scalpel blades. Following a tier III disciplinary hearing, petitioner was found guilty as charged and that determination was affirmed on administrative appeal, with a modified penalty. This CPLR article 78 proceeding ensued.

         We confirm. Initially, the misbehavior report, hearing testimony and related documentary evidence, including the X ray showing the presence of the scalpel blades, provide substantial evidence to support finding him guilty of possessing a weapon and smuggling (see Matter of Sparks v Annucci, 144 A.D.3d 1352, 1352-1353 [2016]; Matter of Hall v Fischer, 87 A.D.3d 1235, 1236 [2011]) [1]. While no one witnessed petitioner put the scalpel blades in the drain, a maintenance employee testified that the drain would only contain items from the room in which petitioner was placed and a correction officer testified that the room had been searched prior to petitioner being placed there and no contraband was found. While petitioner argues that there is no documentary evidence indicating that the room had been searched, this does not necessarily negate the inference that he possessed the blades (see Matter of Diaz v Prack, 127 A.D.3d 1489, 1490 [2015]; Matter of Green v Fischer, 98 A.D.3d 771, 771-772 [2012]).

         Contrary to petitioner's contention, the misbehavior report provided sufficient information to place him on notice of the charges and afford him an opportunity to prepare a defense (see Matter of Richardson v Annucci, 133 A.D.3d 966, 967 [2015]; Matter of Maletta v Amoia, 122 A.D.3d 962, 963 [2014]). While the testimony contained additional facts not included in the misbehavior report, that is expected. The misbehavior report is a summary that must contain the basic information, which can be expanded upon and supplemented by testimony. Moreover, the report was properly made by a correction officer who had "ascertained the facts of the incident" through both his investigation and participation in the search of the drain (7 NYCRR 251-3.1 [b]; see Matter of Mears v Venettozzi, 150 A.D.3d 1498, 1499 [2017]; Matter of Galdamez v Goord, 43 A.D.3d 1237, 1238 [2007]) and was endorsed by another officer who had personal knowledge of some of the relevant facts.

         Turning to petitioner's contention that the hearing was not completed in a timely manner because two extensions were not authorized until after the prior extensions had expired by one day, we note that compliance with the regulatory time limits contained in 7 NYCRR 251-5.1 "is directory only and there is no indication of any substantive prejudice to petitioner resulting from the delay" (Matter of Comfort v Irvin, 197 A.D.2d 907, 908 [1993], lv denied 82 N.Y.2d 662');">82 N.Y.2d 662 [1993]; accord Matter of Mills v Annucci, 149 A.D.3d 1593, 1594 [2017]; see Matter of Bilbrew v Goord, 33 A.D.3d 1107, 1108 [2006]). Further, while there are recurring gaps and certain typographical errors in the hearing transcript, they are not so substantial as to preclude meaningful review (see Matter of Afrika v Blackman, 149 A.D.3d 1369, 1370 [2017]; Matter of Bailey v Prack, 140 A.D.3d 1508, 1509 [2016], lv denied 28 N.Y.3d 904');">28 N.Y.3d 904 [2016]), especially considering that we were also provided the tapes themselves. We reject petitioner's contention that portions of the hearing transcript had been falsified, as there is no indication that the transcript had been altered and the discrepancies between the audio tapes and the transcript raised by petitioner appear to be mere typographical errors (see Matter of Gaston v Fischer, 109 A.D.3d 1063, 1064 [2013]). Additionally, although the scalpel blades and handles were photographed together and the information in the contraband/evidence photograph card incorrectly states that both the blades and the handles were found in the floor drain, the Hearing Officer's statement of evidence relied on in making the guilty determination correctly reflects that the items were recovered at different times and in different locations and there is no indication that any improper inference was made by the items being photographed together. Accordingly, inasmuch as the Hearing Officer did not rely on the information on the photograph card in reaching his determination, the error was harmless (see Matter of Justice v Fischer, 67 A.D.3d 1286, 1287 [2009], lv denied 14 N.Y.3d 709');">14 N.Y.3d 709 [2010]; Matter of Seymour v Goord, 24 A.D.3d 831, 832 [2005], lv denied 6 N.Y.3d 711 [2006]). We have reviewed petitioner's remaining claims, including that the Hearing Officer was biased, and find them to be without merit.

          Lynch, Rose, Clark and Pritzker, JJ., concur.

         ADJUDGED that the determination is confirmed, without costs, and petition dismissed.


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