Matter of Darrett v. Annucci

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 disobeying a direct order, creating a disturbance, interfering with an employee, violating visiting room procedures, smuggling and failing to comply with frisk procedures. According to the misbehavior report, petitioner and his son acted suspiciously during a visit and repeatedly looked over at the correction officer on duty. After petitioner nervously asked to use the bathroom, the correction officer observed petitioner squatting in front of the urinal, reaching between his legs and apparently inserting something into his rectum. A strip search of petitioner was ordered, during which petitioner was argumentative and uncooperative, thereby resulting in multiple direct orders for him to keep his hands on the wall. When a string was observed hanging from petitioner’s buttocks, several direct orders to remove it were issued before petitioner complied. The string had a loop and knot on one end but nothing attached to it.

Following a tier III disciplinary hearing, petitioner was found guilty of all charges with the exception of creating a disturbance and refusing to comply with frisk procedures. The determination was modified on administrative appeal to the extent that the charge of interference with an employee was dismissed, but was otherwise affirmed. This CPLR article 78 proceeding ensued.

We confirm. Contrary to petitioner’s contention, the misbehavior report and testimony from the correction officer who authored it provide substantial evidence to support the determination of guilt, notwithstanding that no contraband was found (see Matter of Padilla v Fischer, 76 AD3d 742, 742 [2010], lv denied 15 NY3d 714 [2010]; Matter of Spulka v Goord, 12 AD3d 1004, 1005 [2004]). Furthermore, we conclude that there is nothing inconsistent with the dismissal of the charge of interference with an employee and a guilty finding on the charges of refusing a direct order, smuggling and violating visiting room procedures. Petitioner’s remaining contention that the string and videotape of petitioner in the bathroom should have been produced at the hearing is not preserved for our review as he did not request such evidence before or dur ing the hearing (see Matter of Joseph v Prack, 133 AD3d 1014, 1015 [2015]; Matter of Gressler v Fischer, 108 AD3d 895, 896 [2013]).

Lahtinen, J.P., Garry, Rose, Devine and Aarons, JJ., concur.

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