State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 10, 2016 521592 

________________________________

In the Matter of DAVID PRICHER,

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., Garry, Lynch and Devine, JJ.

__________

David Pricher, Elmira, 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 Albany County) to

review a determination of respondent finding petitioner guilty of

violating certain prison disciplinary rules.

Petitioner, a prison inmate, commenced this CPLR article 78

proceeding challenging a prison disciplinary determination

rendered upon two misbehavior reports. The first report charged

him with violent conduct, assault, refusing to follow a direct

order, failure to comply with frisk procedures and interfering

with an employee, after he became involved in a physical

altercation with correction officers during a strip search. The

second report charged him with possessing drugs and possessing

contraband, after petitioner spit four balloons out of his mouth

during the strip search – two of which contained cigarette
-2- 521592 

rolling papers and matches and the other two contained a green

leafy substance that tested positive for marihuana. Following a

tier III disciplinary hearing on both reports, petitioner was

found guilty as charged and this determination was affirmed on

administrative appeal.

We confirm. Initially, to the extent that petitioner

raises the issue of substantial evidence, we find that the

misbehavior reports, hearing testimony and related documentation,

including the positive test results, support the determination of

guilt (see Matter of Fragosa v Moore, 93 AD3d 979, 980 [2012];

Matter of Black v Goord, 302 AD2d 648, 648 [2003]). 

Turning to petitioner's procedural challenges, the record

reflects that the misbehavior reports were properly endorsed (see

7 NYCRR 251-3.1 [b]; Matter of Lindo v Fischer, 72 AD3d 1295,

1296 [2010]) and sufficiently detailed to allow him to prepare an

adequate defense (see 7 NYCRR 251-3.1 [c]; Matter of Basbus v

Prack, 112 AD3d 1088, 1088 [2013]; Matter of Hernandez v Prack,

108 AD3d 965, 966 [2013]). Accordingly, contrary to petitioner's

contention, the misbehavior reports were not defective because

they failed to reference the confidential information that

prompted the initial search (see Matter of Horne v Fischer, 98

AD3d 788, 789 [2012]; Matter of Muller v Fischer, 62 AD3d 1191,

1191-1192 [2009]). Any deficiency in his employee assistance was

cured by the Hearing Officer, who provided petitioner with the

documents that he had requested (see Matter of Lashway v Fischer,

117 AD3d 1141, 1142 [2014]; Matter of Hart v Fischer, 89 AD3d

1357, 1358 [2011], lv denied 18 NY3d 808 [2012]). Finally, there

is no indication in the record that the Hearing Officer was

biased or that the determination flowed from any alleged bias

(see Matter of Dolan v Annucci, 120 AD3d 870, 871 [2014]). 

Petitioner's remaining contentions are either unpreserved or lack

merit. 

Peters, P.J., Garry, Lynch and Devine, JJ., concur.
-3- 521592 

ADJUDGED that the determination is confirmed, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court