Matter of Micolo v. Annucci

Appellate Division of the Supreme Court of New York

Matter of Micolo v. Annucci

140 A.D.3d 1442, 36 N.Y.S.3d 898

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 16, 2016

Docket521758

StatusPublished

Cited by6 cases

This text of 140 A.D.3d 1442 (Matter of Micolo v. Annucci) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Matter of Micolo v. Annucci, 140 A.D.3d 1442, 36 N.Y.S.3d 898 (N.Y. Ct. App. 2016).

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Opinion

Appeal from a judgment of the Supreme Court (Hard, J.), entered July 8, 2015, 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 a random pat frisk of petitioner, he was discovered in possession of two partially crushed pills of percocet that he was supposed to have consumed earlier that day when it was given to him at the medical window. As a result, he was charged in a misbehavior report with possessing an authorized item in an unauthorized area, possessing a narcotic and smuggling. *1443 Following a tier III disciplinary hearing, petitioner was found guilty as charged. The determination was affirmed upon administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding. Supreme Court dismissed the petition and this appeal ensued.

We affirm. Although, before Supreme Court, petitioner did not have access to the certified hearing transcript because respondent inadvertently submitted it as a confidential exhibit with its answer, petitioner has now received the complete certified transcript. We discern no prejudice and, thus, any error will be disregarded (see CPLR 7804 [e]; Matter of Smith v Quinn, 120 AD3d 1509, 1510 [2014]; Matter of Cliff v Kingsley, 293 AD2d 954, 955 [2002]). We reject petitioner’s contention that he was disciplined in violation of Correction Law § 138, as he does not allege that he has never received a copy of the rules at issue and, moreover, the record establishes that he had actual knowledge that the conduct he engaged in was prohibited (see Correction Law § 138 [3], [5]). Further, petitioner was properly removed from the hearing where, after being told to stop interjecting during a witness’s testimony and warned that he would be removed, he continued to engage in disruptive and argumentative behavior (see 7 NYCRR 254.6 [a] [2]; Matter of Garcia v Prack, 128 AD3d 1244, 1245 [2015]). Finally, petitioner’s claim that the Hearing Officer improperly denied his request for a certain witness is unpersuasive, as the record establishes that petitioner never clearly made such a request. Petitioner’s remaining contentions are either unpre-served or lack merit.

Peters, P.J., McCarthy, Rose, Clark and Aarons, JJ., concur.

Ordered that the judgment is affirmed, without costs.

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Appeal from a judgment of the Supreme Court (Hard, J.), entered July 8, 2015, 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 a random pat frisk of petitioner, he was discovered in possession of two partially crushed pills of percocet that he was supposed to have consumed earlier that day when it was given to him at the medical window. As a result, he was charged in a misbehavior report with possessing an authorized item in an unauthorized area, possessing a narcotic and smuggling. *1443 Following a tier III disciplinary hearing, petitioner was found guilty as charged. The determination was affirmed upon administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding. Supreme Court dismissed the petition and this appeal ensued.

We affirm. Although, before Supreme Court, petitioner did not have access to the certified hearing transcript because respondent inadvertently submitted it as a confidential exhibit with its answer, petitioner has now received the complete certified transcript. We discern no prejudice and, thus, any error will be disregarded (see CPLR 7804 [e]; Matter of Smith v Quinn, 120 AD3d 1509, 1510 [2014]; Matter of Cliff v Kingsley, 293 AD2d 954, 955 [2002]). We reject petitioner’s contention that he was disciplined in violation of Correction Law § 138, as he does not allege that he has never received a copy of the rules at issue and, moreover, the record establishes that he had actual knowledge that the conduct he engaged in was prohibited (see Correction Law § 138 [3], [5]). Further, petitioner was properly removed from the hearing where, after being told to stop interjecting during a witness’s testimony and warned that he would be removed, he continued to engage in disruptive and argumentative behavior (see 7 NYCRR 254.6 [a] [2]; Matter of Garcia v Prack, 128 AD3d 1244, 1245 [2015]). Finally, petitioner’s claim that the Hearing Officer improperly denied his request for a certain witness is unpersuasive, as the record establishes that petitioner never clearly made such a request. Petitioner’s remaining contentions are either unpre-served or lack merit.

Peters, P.J., McCarthy, Rose, Clark and Aarons, JJ., concur.

Ordered that the judgment is affirmed, without costs.

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140 A.D.3d 1442, 36 N.Y.S.3d 898, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-micolo-v-annucci-nyappdiv-2016.

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