Matter of Bellamy v Venettozzi

Matter of Bellamy v Venettozzi 2017 NY Slip Op 05892 Decided on July 27, 2017 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: July 27, 2017
523538

[*1]In the Matter of PERRY BELLAMY, Petitioner,

v

DONALD VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.

Calendar Date: June 12, 2017
Before: McCarthy, J.P., Garry, Lynch, Clark and Rumsey, JJ.

Perry Bellamy, Elmira, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondent.

MEMORANDUM AND JUDGMENT

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 the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with possessing a weapon and smuggling. According to the misbehavior report, petitioner reported that he had swallowed a weapon two days earlier that he had been concealing in his mouth and that it was caught in his throat. After being examined at the correctional facility infirmary, petitioner was transported to an outside medical center, where an X ray revealed no weapon or unusual object in petitioner's throat or body, and it was

determined that the soreness in his throat was the result of where the weapon had previously been lodged. Following a tier III hearing, petitioner was found guilty of both charges, and that determination was affirmed upon administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. Contrary to petitioner's contention, the detailed misbehavior report, authored by the correction officer to whom petitioner made the admission about the weapon, is sufficient, by itself, to provide substantial evidence supporting the determination of guilt (see Matter of Simmons v LaValley, 130 AD3d 1126, 1127 [2015]; Matter of Karacostantakis v [*2]Prack, 107 AD3d 1277, 1277 [2013]; Matter of Figueroa v Lacy, 260 AD2d 765, 766 [1999]). We are unpersuaded by petitioner's contention that the determination should be annulled because no weapon was seen on the X ray or recovered. The misbehavior report, which the Hearing Officer found credible, relates that petitioner admitted that he had swallowed a weapon and indicated that the weapon may have passed through his stool prior to reporting the incident. Under these circumstances, the determination of guilt will not be disturbed (see Matter of Hall v Fischer, 87 AD3d 1235, 1236 [2011]).

McCarthy, J.P., Garry, Lynch, Clark and Rumsey, JJ., concur.

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