State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: March 10, 2016 520781
________________________________
In the Matter of SHANE HYATT,
Petitioner,
v
MEMORANDUM AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
Commissioner of Corrections
and Community Supervision,
Respondent.
________________________________
Calendar Date: January 19, 2016
Before: Peters, P.J., Lynch, Devine and Clark, JJ.
__________
Shane Hyatt, Malone, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco of counsel), for respondent.
__________
Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Franklin County)
to review a determination of respondent finding petitioner guilty
of violating certain prison disciplinary rules.
During a search of petitioner's cell, a correction officer
found written documents pertaining to an unauthorized
organization as well as handwritten directions on how to build a
"stink bomb." As a result, he was charged in a misbehavior
report with possessing written material relating to an
unauthorized organization and possessing material describing the
construction of an explosive device. He was found guilty of the
charges following a tier III disciplinary hearing and the
determination was later affirmed on administrative appeal. This
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CPLR article 78 proceeding ensued.1
Initially, we reject petitioner's claim that the
misbehavior report lacked sufficient detail, inasmuch as it set
forth the rule violations at issue as well as the conduct
providing the basis for the charges, and thereby afforded
petitioner adequate notice to enable him to prepare a defense
(see Matter of Walker v Fischer, 107 AD3d 1273, 1273-1274 [2013];
Matter of Toro v Fischer, 104 AD3d 1036, 1037 [2013]). On a
related note, petitioner maintains that he was unaware of rule
105.14 prohibiting the possession of unauthorized organizational
material (see 7 NYCRR 270.2 [B] [6] [v]) because it did not
appear as rule 105.14 in the rule book that he was given. We are
not persuaded given that this rule was revised and renumbered in
2008, at which time a memorandum was provided to inmates,
including presumably petitioner, advising of the change (see
Matter of Gittens v Fischer, 100 AD3d 1121, 1122 [2012]; Matter
of Watson v Fischer, 94 AD3d 1317, 1318 [2012]). Furthermore,
there was no violation of petitioner's right to call witnesses
insofar as the testimony of the editor and publisher of the
magazine from which he allegedly obtained the instructions on how
to build a "stink bomb" was irrelevant to the charges (see Matter
of Omaro v Prack, 129 AD3d 1394, 1395 [2015]; Matter of Boyd v
Fischer, 108 AD3d 995, 996 [2013]). We have considered
petitioner's remaining arguments and find them to be lacking in
merit.
Peters, P.J., Lynch, Devine and Clark, JJ., concur.
1
Although the proceeding should not have been transferred
due to the failure of the verified petition to raise the issue of
substantial evidence, we retain jurisdiction and address
petitioner's claims in the interest of judicial economy (see
Matter of Selah v LaValley, 117 AD3d 1261, 1261 n [2014]).
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ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.
ENTER:
Robert D. Mayberger
Clerk of the Court