| Matter of Morales v Fischer |
| 2011 NY Slip Op 08528 [89 AD3d 1346] |
| November 23, 2011 |
| Appellate Division, Third Department |
| In the Matter of Gustavo Morales, Petitioner, v Brian Fischer, asCommissioner of Corrections and Community Supervision, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
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 which found petitioner guilty ofviolating certain prison disciplinary rules.
After a search of petitioner's prison cell revealed a plastic tube attached to a bag of yellow liquidthat was believed to be urine, he was removed to the special housing unit. A continuation of the searchrevealed a scalpel, several bags of a green leafy substance, a white powder and a paper clip with foilattached. He was thereafter charged in a misbehavior report with possession of a weapon, possessionof contraband, smuggling and committing an unhygienic act. When the green substance tested positivefor marihuana, petitioner was subsequently served with a second misbehavior report charging him withdrug possession. A tier III disciplinary hearing was conducted to address both reports, after whichpetitioner was found guilty of possessing a weapon, contraband and drugs. That determination wasupheld on administrative appeal, after which petitioner commenced this CPLR article 78proceeding.[FN*][*2]
Petitioner's sole contention on this appeal is that he wasimpermissibly denied the right to observe that part of the search that took place after he was removedto the special housing unit. Respondent argues that this issue is unpreserved for this Court's review dueto petitioner's failure to raise it at the disciplinary hearing. However, lack of preservation that arisesfrom the failure to raise an issue at a disciplinary hearing should be confined to those instances in whichthe Hearing Officer has the opportunity to correct the deficiency if so raised (see e.g. Matter of Hamilton v Bezio, 76AD3d 1125, 1126 [2010]; Matter ofBosquet v Bezio, 69 AD3d 1257, 1258 [2010]; Matter of Christian v Goord, 20 AD3d 862, 863 [2005]). Where thealleged error arises from a defect that appears on the face of the record, raising the issue in anadministrative appeal gives the administrative body adequate opportunity to correct the error, thuspreserving the issue for judicial review (seeMatter of Quinones v Fischer, 67 AD3d 1285, 1286 [2009]; Matter of Cayenne v Goord, 16 AD3d782, 783 [2005]). Thus, we find petitioner adequately preserved the issue by raising it in hisadministrative appeal.
Turning to the merits, pursuant to Department of Corrections and Community Supervision DirectiveNo. 4910 (V) (C) (1), an inmate is permitted to observe a search of his or her cell when he or she isremoved for the purpose of conducting the search unless a determination is made that such presenceendangers the safety or security of the facility (see Matter of Griffin v Selsky, 60 AD3d 1247, 1248 [2009]; Matter of Vines v Goord, 19 AD3d951, 952 [2005]; Matter of McKethan v Selsky, 297 AD2d 840, 841 [2002]). Here, therecord demonstrates that petitioner was impermissibly removed to the special housing unit after thediscovery of the plastic tube and the bag with yellow liquid, without any determination having beenmade that he was a security risk. As there was no showing that the suspected liquid was urine and,thus, the charge of committing an unhygienic act was dismissed, all of the charges for which petitionerwas found guilty resulted from the search subsequent to his removal. Inasmuch as respondent isrequired to adhere to his own regulations, the determination of guilt must be annulled (see Matter ofJohnson v Goord, 288 AD2d 525, 526 [2001]; Matter of Holloway v Lacy, 263 AD2d740, 741-742 [1999]; Matter of Gonzalez v Wronski, 247 AD2d 767, 768 [1998]).
Peters, J.P., Spain, Malone Jr., McCarthy and Garry, JJ., concur. Adjudged that the determinationis annulled, without costs, petition granted and respondent is directed to expunge all references theretofrom petitioner's institutional record and to reimburse the mandatory surcharge to petitioner.
Footnote *: Because the issue of substantialevidence was not raised in the petition, this proceeding appears to have been improperly transferred tothis Court (see Matter of Barca vFischer, 80 AD3d 1038, 1038 n [2011], lv denied 16 NY3d 711 [2011]; Matter of Davis v State of New York, 75AD3d 1022, 1022 n [2010]). However, in the interest of judicial economy, we retain jurisdictionand address the merits.