State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 15, 2016 522673 

________________________________

In the Matter of RAMIEL HARRIS,

Petitioner,

v

ANTHONY J. ANNUCCI, as Acting MEMORANDUM AND JUDGMENT

Commissioner of Corrections

and Community Supervision,

Respondent.

________________________________

Calendar Date: October 25, 2016

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

__________

Ramiel Harris, Auburn, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Brian

Ginsberg 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.

During the course of an investigation, correction officers

discovered that petitioner was involved in a plan to bring drugs

and weapons into the correctional facility. As a result,

petitioner was charged in two misbehavior reports with smuggling,

conspiring to bring drugs and weapons into the facility, making a

prohibited three-way telephone call and violating visitation and

correspondence procedures. Following a tier III disciplinary

hearing, petitioner was found guilty as charged. The

determination was upheld on administrative appeal with a modified

penalty, and this CPLR article 78 proceeding ensued.
-2- 522673 

We confirm. The misbehavior reports, hearing testimony,

documentary evidence and confidential information provide

substantial evidence supporting the determination of guilt (see

Matter of Welch v Fischer, 121 AD3d 1139, 1140 [2014]; Matter of

Jones v Prack, 114 AD3d 985, 985 [2014]). Contrary to

petitioner's contention, the Hearing Officer conducted an

independent assessment of reliability of the confidential

information by interviewing the investigating correction officer

and reviewing the confidential information (see Matter of AlMatin v Prack, 131 AD3d 1293, 1293 [2015], lv denied 26 NY3d 913

[2015]; Matter of White v Fischer, 121 AD3d 1478, 1479 [2014]). 

Further, the fact that petitioner was never found in possession

of weapons or drugs does not negate his guilt, inasmuch as the

rule violations occurred when he conspired to bring the items

into the facility (see 7 NYCRR 270.2 [B] [14] [i], [xv]; 270.3

[b]; Matter of Welch v Fischer, 121 AD3d at 1140; Matter of

Sanders v LaClair, 67 AD3d 1226, 1227 [2009]).

Turning to petitioner's procedural arguments, we find that

the misbehavior reports adequately apprised petitioner of the

charges against him in order for him to prepare a defense (see

Matter of Chandler v Annucci, 135 AD3d 1258, 1259 [2016]; Matter

of Hobson v Prack, 127 AD3d 1370, 1371 [2015]). We reject

petitioner's contention that he was denied effective employee

assistance, as the Hearing Officer remedied any deficiencies and

petitioner has not demonstrated any prejudice (see Matter of

McMaster v Annucci, 138 AD3d 1289, 1290 [2016], lv denied 28 NY3d

902 [2016]; Matter of Pooler v Fischer, 107 AD3d 1256, 1257

[2013], lv denied 22 NY3d 855 [2013]). Moreover, petitioner's

right to call the former facility superintendent as a witness was

not violated, as the Hearing Officer properly determined that the

witness was unavailable (see Matter of Alicea v Fischer, 89 AD3d

1245, 1246 [2011], lv denied 18 NY3d 807 [2012]; Matter of Lebron

v Goord, 6 AD3d 997, 998 [2004]). Finally, the written

authorization and the confidential testimony of the officer

conducting the investigation establish a proper basis for the

mail watch (see Matter of Davis v Prack, 100 AD3d 1177, 1178

[2012], lv dismissed 22 NY3d 910 [2013]; Matter of Cochran v

Bezio, 70 AD3d 1161, 1162 [2010]). Petitioner's remaining claims

are either unpreserved or lacking in merit.
-3- 522673 

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

concur.

ADJUDGED that the determination is confirmed, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court