State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: June 30, 2016 521342
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In the Matter of THOMAS
PATTERSON,
Petitioner,
v MEMORANDUM AND JUDGMENT
DONALD VENETTOZZI, as Acting
Director of Special Housing
and Inmate Disciplinary
Programs,
Respondent.
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Calendar Date: June 3, 2016
Before: Peters, P.J., Lahtinen, Egan Jr., Rose and Clark, JJ.
__________
Thomas Patterson, Dannemora, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco of counsel), for respondent.
__________
Lahtinen, J.
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.
During a search of petitioner's cell, a correction officer
found a razor blade with a masking tape handle secreted in the
waistband of petitioner's state-issued pants. As a result, he
was charged in a misbehavior report with possessing a weapon and
altering state property. During the same search, another
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correction officer recovered personal letters containing gang-
related references, and petitioner was charged in a second
misbehavior report with possessing gang-related material.
Following a tier III disciplinary hearing, he was found guilty of
the charges contained in both reports. The determination was
later affirmed on administrative appeal, and this CPLR article 78
proceeding ensued.
We confirm. Initially, insofar as petitioner challenges
that part of the determination finding him guilty of possessing
gang-related material, we note that the second misbehavior
report, confiscated documents and testimony of the author of the
report, who was trained in identifying gang-related material,
provide substantial evidence supporting it (see Matter of Gittens
v Fischer, 100 AD3d 1121, 1121-1122 [2012]; Matter of Smith v
Prack, 98 AD3d 780, 781 [2012]). Contrary to petitioner's claim,
the hearing was not untimely as it was commenced and completed
within the time periods provided in the valid extensions that
were obtained by the Hearing Officer (see Matter of Jay v
Fischer, 120 AD3d 1466, 1466 [2014], lv denied 24 NY3d 909
[2014]; Matter of Gren v Annucci, 119 AD3d 1307, 1308 [2014]).
In addition, we find no merit to petitioner's claim that he was
improperly denied the videotape of the cell search as it was not
available (see Matter of Blocker v Fischer, 107 AD3d 1285, 1286
[2013]; Matter of Barclay v Knowles, 79 AD3d 1550, 1550-1551
[2010]). Furthermore, any deficiencies in the adequacy of the
employee assistance provided to petitioner were remedied by the
Hearing Officer, and petitioner has not demonstrated that he was
prejudiced (see Matter of Guillory v Annucci, 125 AD3d 1024, 1025
[2015], lv denied 25 NY3d 905 [2015]; Matter of Castillo v
Fischer, 120 AD3d 1493 [2014]). Lastly, the record does not
disclose that the Hearing Officer was biased or that the
determination flowed from any alleged bias (see Matter of
Williams v Prack, 130 AD3d 1123, 1124 [2015]; Matter of Pilet v
Annucci, 128 AD3d 1198, 1199 [2015]). We have considered
petitioner's remaining contentions and find that they are either
unpreserved for our review or lacking in merit.
Peters, P.J., Egan Jr., Rose and Clark, JJ., concur.
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ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.
ENTER:
Robert D. Mayberger
Clerk of the Court