| Matter of Dawes v Venettozzi |
| 2011 NY Slip Op 06521 [87 AD3d 1219] |
| September 22, 2011 |
| Appellate Division, Third Department |
| In the Matter of Ian Dawes, Petitioner, v D. Venettozzi, asDirector of Special Housing and Inmate Disciplinary Programs,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 SupremeCourt, entered in Albany County) to review a determination of the Commissioner of CorrectionalServices which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in two misbehavior reports with numerous prison disciplinary ruleviolations arising from his concealment of suspected items of contraband in his mouth and in hisrectum. After a tier III disciplinary hearing, he was found guilty of creating a disturbance ascharged in the first misbehavior report and interfering with an employee, refusing a direct orderand failing to comply with frisk procedures as charged in the second misbehavior report. Thedetermination was affirmed on administrative appeal and this CPLR article 78 proceedingensued.
Respondent concedes that the part of the determination finding petitioner guilty of creating adisturbance and interfering with an employee is not supported by substantial evidence and mustbe annulled (see Matter of Samuels vDepartment of Correctional Servs. Staff, 84 AD3d 1629, 1629 [2011]; Matter of Rampersant v Selsky, 32AD3d 1085, 1086 [2006]). The part of the determination finding petitioner guilty of refusinga direct order and failing to comply [*2]with frisk procedures issupported by substantial evidence consisting of the second misbehavior report together with thetestimony adduced at the hearing (seeMatter of Lewis v Goord, 43 AD3d 1223, 1224 [2007], lv dismissed 9 NY3d1030 [2008]; Matter of Spulka vGoord, 12 AD3d 1004, 1005 [2004]), which reveal that a correction officer noticed aforeign object protruding from petitioner's rectum during a strip frisk and, when that officerdirected him to remove it, he inserted it further until it was no longer visible. Contrary topetitioner's claim, on the record before us, we find no indication that the Hearing Officer wasbiased or that the determination flowed from any alleged bias (see Matter of Harvey v Bradt, 81 AD3d1003, 1004 [2011]; Matter ofKalwasinski v Bezio, 80 AD3d 1068, 1069 [2011]). Since a loss of good time wasimposed on the charges that have been annulled, the matter must be remitted to theCommissioner of Correctional Services for a reassessment of the penalty on the remainingcharges (see Matter of Samuels v Department of Correctional Servs. Staff, 84 AD3d at1629; Matter of Quinones v Fischer,78 AD3d 1407, 1408 [2010]).
Mercure, J.P., Lahtinen, Malone Jr., Kavanagh and Egan Jr., JJ., concur. Adjudged that thedetermination is modified, without costs, by annulling so much thereof as found petitioner guiltyof creating a disturbance and interfering with an employee and imposed a penalty; petitiongranted to that extent, the Commissioner of Correctional Services is directed to expunge allreferences thereto from petitioner's institutional record and matter remitted to the Commissionerfor an administrative redetermination of the penalty on the remaining violations; and, as somodified, confirmed.