Matter of Evans v. Martuscello

Opinion

Matter of Evans v Martuscello

2026 NY Slip Op 04723

July 24, 2026

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

IN THE MATTER OF CLARENCE EVANS, PETITIONER,

v

DANIEL F. MARTUSCELLO, III, COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT.

Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department

Decided on July 24, 2026

567 TP 25-02104

Present: Lindley, J.P., Bannister, Ogden, Delconte, And Hannah, JJ.

WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER.

LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KATE H. NEPVEU OF COUNSEL), FOR RESPONDENT.

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Wyoming County [Donald G. O'Geen, A.J.], entered December 16, 2025) to review a determination of respondent. The determination found after a tier III hearing that petitioner had violated various incarcerated individual rules.

[*1]

It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.

Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul a determination, following a tier III disciplinary hearing, that he violated incarcerated individual rules 100.11 (7 NYCRR 270.2 [B] [1] [ii]), 102.10 (7 NYCRR 270.2 [B] [3] [i]), and 104.11 (7 NYCRR 270.2 [B] [4] [i]). Contrary to petitioner's contention, the determination is supported by substantial evidence, i.e., "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (Matter of Bottom v Annucci, 26 NY3d 983, 984-985 [2015] [internal quotation marks omitted]; see Matter of Derby v Annucci, 227 AD3d 1413, 1414 [4th Dept 2024]). Specifically, the misbehavior report, petitioner's own statements during the hearing, and the video of the relevant incident reviewed by the hearing officer constitute substantial evidence to support the determination (see Matter of Gilbert v Martuscello, 247 AD3d 1630, 1630 [4th Dept 2026]; Matter of Bradshaw v Annucci, 229 AD3d 1244, 1245 [4th Dept 2024]; Derby, 227 AD3d at 1414).

Petitioner contends that his due process rights were violated when the hearing officer viewed the video of the incident outside his presence and when the hearing officer took testimony from the author of the misbehavior report outside his presence. Inasmuch as he failed to raise that contention in his administrative appeal, he "failed to exhaust his administrative remedies[,] and this Court has no discretionary power to reach that issue" (Derby, 227 AD3d at 1415 [internal quotation marks omitted]; see Matter of Cornell v Annucci, 173 AD3d 1760, 1761 [4th Dept 2019]).

Petitioner's further contention, which was raised in his administrative appeal and thus is properly before us, is that his due process rights were violated because the misbehavior report violated 7 NYCRR 251-3.1 (b) inasmuch as it was not endorsed by the nurse who had personal knowledge of the incident. While the nurse who observed the incident failed to endorse the misbehavior report as provided in 7 NYCRR 251-3.1 (b), under the circumstances presented here, "any such error is harmless inasmuch as petitioner failed to demonstrate any prejudice resulting therefrom" (Matter of Adams v Stinson, 267 AD2d 537, 538 [3d Dept 1999], lv denied[*2]94 NY2d 761 [2000]; see Matter of Thomas v Annucci, 193 AD3d 1356, 1357 [4th Dept 2021]; Matter of Bolling v Coombe, 234 AD2d 730, 731 [2d Dept 1996]).

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court