State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: November 10, 2016 522368
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In the Matter of KEYRON
JACKSON,
Petitioner,
v
MEMORANDUM AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
Commissioner of Corrections
and Community Supervision,
Respondent.
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Calendar Date: September 20, 2016
Before: Garry, J.P., Egan Jr., Rose, Devine and Clark, JJ.
__________
Keyron Jackson, Comstock, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Allyson B.
Levine of counsel), for respondent.
__________
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 respondent finding petitioner guilty of
violating certain prison disciplinary rules.
Petitioner was charged in two misbehavior reports that
resulted from a search of his cell. In the first misbehavior
report, he was charged with assaulting staff, refusing a direct
order, interfering with an employee and failing to comply with
frisk and search procedures. According to the report, petitioner
was standing outside his cell while the search was being
conducted when he "lunged" into the cell, pushing a correction
officer into the cell door, and grabbed an unknown item from his
locker and flushed it down the toilet. Based upon the results of
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the cell search, petitioner was charged in the second misbehavior
report with possessing an unauthorized item that had been
altered, possessing an altered personal item, participating in an
unauthorized exchange and failing to maintain an orderly cell.
At the subsequent hearing held on both misbehavior reports,
petitioner pleaded guilty to interfering with an employee, but
not guilty to all other charges. Following the hearing, he was
found guilty of assaulting staff, refusing a direct order,
interfering with an employee, failing to comply with frisk and
search procedures and participating in an unauthorized exchange,
and not guilty of the remaining charges. The determination was
affirmed on administrative appeal and this CPLR article 78
proceeding ensued.
We confirm. The misbehavior report and related
documentation, together with the hearing testimony, provide
substantial evidence supporting the determination of guilt (see
Matter of Hyatt v Annucci, 125 AD3d 1025, 1025-1026 [2015];
Matter of Brown v Fischer, 120 AD3d 1517, 1517 [2014]).
Petitioner's claim of a lack of evidence that he intended to
assault the correction officer is without merit, inasmuch as
intent is not an element of the charged misconduct (see 7 NYCRR
270.2 [B] [1] [ii]; Matter of Canzater-Smith v Selsky, 28 AD3d
899, 900 [2006]).
As to petitioner's procedural challenges, we reject his
contention that he was improperly denied the right to call a
witness, as the correction officer requested was not present
during the incident and his testimony was not shown to be
relevant (see Matter of Sanders v Annucci, 128 AD3d 1156, 1157
[2015], appeal dismissed 26 NY3d 964 [2015]; Matter of Davis v
Annucci, 123 AD3d 1279, 1279 [2014]). Moreover, insofar as the
reason for the denial of this witness was expressly stated in the
record, the failure to provide petitioner with a written
explanation of the denial does not require annulment (see Matter
of Davis v Prack, 95 AD3d 1574, 1575 [2012], lv denied 19 NY3d
812 [2012]; Matter of McLean v Fischer, 63 AD3d 1468, 1469
[2009]). Finally, we also reject petitioner's contention that
the hearing was not completed in a timely manner, given that the
Hearing Officer obtained valid extensions and the hearing was
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completed within the time frame allowed (see Matter of Patterson
v Venettozzi, 140 AD3d 1562, 1563 [2016]; Matter of Sims v
Fischer, 131 AD3d 1314, 1315 [2015]).
Garry, J.P., Egan Jr., Rose, Devine and Clark, JJ., concur.
ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.
ENTER:
Robert D. Mayberger
Clerk of the Court