Matter of Nix v. Venettozzi

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Matter of Nix v Venettozzi (2021 NY Slip Op 04395) Matter of Nix v Venettozzi 2021 NY Slip Op 04395 Decided on July 15, 2021 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered:July 15, 2021 530854 [*1]In the Matter of Akili Nix, Petitioner, vDonald Venettozzi, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent. Calendar Date:June 17, 2021 Before:Clark, J.P., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ. Akili Nix, Cape Vincent, petitioner pro se. Letitia James, Attorney General, Albany (Kate H. Nepveu 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 the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules. A search of petitioner's cube disclosed a stabbing-type weapon hidden behind a cork board and an orange paper substance found in his locker that later tested positive for buprenorphine. As a result, petitioner was charged in a misbehavior report with smuggling, possessing drugs, possessing a weapon and possessing contraband. Following a tier III disciplinary hearing, petitioner was found guilty of all charges except smuggling. That determination was affirmed upon administrative appeal. This CPLR article 78 proceeding ensued. Initially, respondent concedes, and our review of the record confirms, that the part of the determination finding petitioner guilty of possessing contraband is not supported by substantial evidence and must be annulled. However, because the penalty has been served and no loss of good time was imposed, remittal of the matter for a redetermination thereof is not necessary (see Matter of Abdullah v Department of Corr. & Community Supervision, 193 AD3d 1167, 1168 [2021]). Petitioner's challenge to the determination of guilt insofar as it found him guilty of possessing a weapon is unpersuasive.[FN1] To that end, the misbehavior report, related documentation and testimony at the hearing provide substantial evidence to support the finding that he possessed a weapon (see Matter of Rodari v Venettozzi, 186 AD3d 1860, 1861 [2020]; Matter of Sawyer v Annucci, 140 AD3d 1499, 1500 [2016]). "The fact that the weapon was found in an area within petitioner's control, even if not exclusive, supports the inference of possession" (Matter of Rodari v Venettozzi, 186 AD3d at 1861 [citations omitted]; see Matter of Dowling v Venettozzi, 177 AD3d 1063, 1063-1064 [2019], lv denied 35 NY3d 901 [2020]; Matter of Perez v Annucci, 159 AD3d 1170, 1171 [2018]). Petitioner's contention that the weapon was not his created a credibility issue for the Hearing Officer to resolve (see Matter of Dowling v Venettozzi, 177 AD3d at 1064). Turning to petitioner's procedural claims, petitioner waived any challenge to the refusals of two inmate witnesses to testify at the hearing (see Matter of Cosme v New York State Dept. of Corr. & Community Supervision, 168 AD3d 1327, 1328 [2019]; …

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