State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: September 15, 2016 522369 

________________________________

In the Matter of CARL

MACEDONIO,

Petitioner,

v MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting 

Commissioner of Corrections

and Community Supervision,

et al.,

Respondents.

________________________________

Calendar Date: August 8, 2016

Before: Peters, P.J., Garry, Egan Jr., Clark and Aarons, JJ.

__________

Carl Macedonio, Ossining, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J.

Mastracco of counsel), for respondents.

__________

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 Superintendent of Shawangunk

Correctional Facility finding petitioner guilty of violating a

prison disciplinary rule.

A search of petitioner's cell revealed a plastic jar

containing paint and two lewd paintings on the cell wall. 

Petitioner was thereafter charged in a misbehavior report with

possessing contraband, destroying state property and failing to

keep an orderly and clean cell. Following a tier II disciplinary

hearing, petitioner was found guilty of possessing contraband,

but not guilty of the remaining charges. This determination was
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affirmed on administrative appeal and this CPLR article 78

proceeding ensued.1

We confirm. Petitioner's request for certain documents

related to the authorization of the cell search was properly

denied by the Hearing Officer, inasmuch as "the basis for the

search in the first instance was irrelevant to the issue of

whether petitioner possessed the contraband" (Matter of Sweeter v

Coughlin, 221 AD2d 741, 741 [1995]; see Matter of Covington v

Harford, 105 AD3d 1289, 1290 [2013], lv denied 21 NY3d 862

[2013]). Moreover, our review of the Hearing Officer's statement

of evidence relied on does not support petitioner's contention

that the Hearing Officer also relied on evidence outside the

record in finding petitioner guilty of possessing contraband,

despite the reference in the statement that the cell search was

authorized. Finally, we reject petitioner's contention that the

disciplinary hearing was not completed in a timely manner. In

calculating the 14-day time limit for completion of the hearing

(see 7 NYCRR 251-5.1 [b]), the date the misbehavior report is

written is excluded (see Matter of Alvarez v Fischer, 94 AD3d

1404, 1406 [2012], lv denied 96 AD3d 1703 [2012]; Matter of

Freeman v Selsky, 270 AD2d 547, 547-548 [2000]). Insofar as the

misbehavior report was written on June 2, 2015 and the hearing

was completed on June 16, 2015, the time limit was met.

Peters, P.J., Garry, Egan Jr., Clark and Aarons, JJ.,

concur.

1 Although the petition arguably raised the issue of

substantial evidence and, accordingly, the proceeding was

properly transferred to this Court, petitioner has abandoned such

argument by failing to raise it in his brief (see Matter of

Davila v Prack, 113 AD3d 978, 978 n [2014], lv denied 23 NY3d 904

[2014]).
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ADJUDGED that the determination is confirmed, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court