| Matter of Murphy v Graham |
| 2012 NY Slip Op 05995 [98 AD3d 833] |
| August 17, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of Kareem Murphy, Respondent, v Harold D.Graham, Superintendent, Auburn Correctional Facility, Appellant. |
—[*1] Kareem Murphy, petitioner-respondent pro se.
Appeal from a judgment (denominated order) of the Supreme Court, Cayuga County(Thomas G. Leone, A.J.), entered September 2, 2011 in a proceeding pursuant to CPLR article78. The judgment granted the petition and vacated the determination of respondent.
It is hereby ordered that the judgment so appealed from is unanimously vacated, thedetermination is modified on the law and the petition is granted in part by vacating the penaltyimposed and as modified the determination is confirmed without costs and the matter is remittedto respondent for further proceedings in accordance with the following memorandum:Respondent appeals from a judgment that granted the petition, vacated respondent'sdetermination finding petitioner guilty of violating inmate rule 113.25 (7 NYCRR 270.2 [B] [14][xv] [prohibiting possession of, inter alia, marijuana]), and ordered the expungement of thedetermination from petitioner's institutional record. We note at the outset that Supreme Courterred in failing to transfer this proceeding to this Court pursuant to CPLR 7804 (g). That sectionprovides in relevant part that, where a substantial evidence issue is raised, "the court shall firstdispose of such other objections as could terminate the proceeding[,] . . . [but i]f thedetermination of the other objections does not terminate the proceeding," the court shall transferthe proceeding to this Court (id.). The court granted the petition based on respondent'sviolation of its own directive, i.e., Department of Correctional Services Directive No. 4910 (V)(C) (1), that petitioner had the right to be present during the search of his cell. Respondent'scontention that prison officials properly invoked the security exception contained in that directiveis raised for the first time on appeal, and thus it is not properly before us (see Ciesinski vTown of Aurora, 202 AD2d 984, 985 [1994]; cf. Matter of Patterson v Coughlin, 198AD2d 899, 900 [1993]). In any event, that contention lacks merit because the record is devoid ofevidence that "allow[ing] petitioner to observe the search would 'presen[t] a danger to the safetyand security of the facility' " (Patterson, 198 AD2d at 900; see Matter of Johnson vGoord, 288 AD2d 525, 526 [2001]; Matter of Gonzalez v Wronski, 247 AD2d 767,768 [1998]). Moreover, there is no indication that petitioner waived his right to observe thesearch of his cell (see Matter of Vines vGoord, 19 AD3d 951, 952 [2005]; Matter of Mitchell v Goord, 266 AD2d 614,615 [1999]; see generally Patterson, 198 AD2d at 900).
Although we conclude that the court properly determined that respondent violated its own[*2]directive and thus that the marihuana found during theimproper search of petitioner's cell could not form the basis for the finding that petitionerviolated the inmate rule in question, we nevertheless agree with respondent that there issubstantial evidence to support the Hearing Officer's finding of guilt with respect to petitioner'sviolation of the inmate rule. Thus, respondent's violation of its own directive "does not terminatethe proceeding" (CPLR 7804 [g]), and the court therefore should have transferred the proceedingto this Court. The misbehavior report set forth that a correction officer had asked petitioner toexit his cell, whereupon he conducted a pat frisk of petitioner and discovered a cellophane bagcontaining suspected contraband drugs in petitioner's right sock. It is undisputed that the friskwas conducted before the search of petitioner's cell. Subsequent testing revealed that the bagcontained 4.1 grams of marihuana. It is well established that a written misbehavior report mayconstitute substantial evidence of an inmate's misconduct (see Matter of Perez v Wilmot,67 NY2d 615, 616 [1986]; People ex rel. Vega v Smith, 66 NY2d 130, 140 [1985]).Although petitioner denied that drugs were found on his person, that denial served only to createa credibility issue that the Hearing Officer was entitled to resolve against petitioner (seePerez, 67 NY2d at 617; see generally Matter of Foster v Coughlin, 76 NY2d 964,966 [1990]).
Based on the violation of the inmate rule, the Hearing Officer imposed a penalty thatincluded a loss of good time of 12 months. The penalty imposed, however, took into account thetotal quantity of drugs, i.e., the 4.1 grams of marihuana discovered on petitioner's person and the29.8 grams recovered during the search of petitioner's cell. The Hearing Officer expressly foundthat the total quantity demonstrated an intent to distribute, which constituted "an aggravatingfactor." Insofar as the record fails to specify what penalty may have been imposed based solelyupon the much smaller quantity of marihuana found on petitioner's person, we modify thedetermination by vacating the penalty imposed. Although there is no need to remit the matter torespondent for the imposition of a new penalty to the extent that petitioner has already served thepenalty, it is unclear from the record what portions of the penalty have been served. We thereforeremit the matter to respondent for reconsideration of that part of the penalty that has not alreadybeen served, including reconsideration of the recommended loss of good time (see generally Matter of McFadden vPrack, 93 AD3d 1268 [2012]; Matter of Monroe v Fischer, 87 AD3d 1300, 1301 [2011]; Matter of Gonzalez v Goord, 8 AD3d970, 971 [2004]). Present—Smith, J.P., Fahey, Carni, Sconiers and Martoche, JJ.