Matter of Clark v Annucci

Matter of Clark v Annucci 2016 NY Slip Op 06029 Decided on September 15, 2016 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: September 15, 2016
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[*1]In the Matter of WILLIE CLARK, Appellant,

v

ANTHONY J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: August 8, 2016
Before: Peters, P.J., McCarthy, Garry, Clark and Mulvey, JJ.

Willie Clark, Comstock, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Owen Demuth of counsel), for respondent.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Hayden, J.), entered October 5, 2015 in Chemung County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.

During the course of a narcotics investigation at the correctional facility where petitioner is incarcerated, certain telephone calls made by petitioner in May 2014 were monitored and petitioner was heard speaking to a woman regarding a plan to bring controlled substances, including marihuana, cocaine and pills, into the correctional facility. The woman was arrested after she passed these substances on to a third person who was to transport them into the correctional facility. As a result, petitioner was charged in a misbehavior report with conspiring to

possess controlled substances, smuggling and making third-party telephone calls. Following a tier III disciplinary hearing, he was found guilty of the charges. On administrative appeal, the charge of making third-party telephone calls was dismissed and the penalties were reduced, but the modified determination was otherwise upheld. Petitioner commenced this CPLR article 78 proceeding challenging the modified determination. Following service of respondent's answer, Supreme Court dismissed the petition and petitioner now appeals.

Petitioner challenges the determination on procedural grounds arguing, among other things, that he was improperly denied as a witness the unnamed third party referenced in the misbehavior report. Significantly, the investigator who testified at the hearing indicated that this person's identity was confidential due to the fact that the criminal investigation was still ongoing. Given that the revelation of this individual's name could compromise the investigation and jeopardize institutional security, the denial of petitioner's request was not improper (see Matter of Williams v Goord, 23 AD3d 872, 873 [2005]; Matter of Fludd v Goord, 18 AD3d 929, 930 [*2][2005]; see also Matter of Shannon v Goord, 282 AD2d 909, 910 [2001]). We have considered petitioner's remaining contentions and find that they are either unpreserved for our review or are lacking in merit. Therefore, the petition was properly dismissed.

Peters, P.J., McCarthy, Garry, Clark and Mulvey, JJ., concur.

ORDERED that the judgment is affirmed, without costs.