State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 17, 2016 522051 

________________________________

In the Matter of YUSUF SPARKS, 

Petitioner,

v

MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting

Commissioner of Corrections

and Community Supervision,

et al.,

Respondents.

________________________________

Calendar Date: October 20, 2016

Before: McCarthy, J.P., Lynch, Devine, Mulvey and Aarons, JJ.

__________

Whiteman Osterman & Hanna LLP, Albany (Jon E. Crain of

counsel), for petitioner.

Eric T. Schneiderman, Attorney General, Albany (Zainab A.

Chaudhry of counsel), for respondents.

__________

McCarthy, J.P.

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 Commissioner of Corrections

and Community Supervision finding petitioner guilty of violating

certain prison disciplinary rules. 

After prison officials learned that petitioner had

swallowed an object during a pat frisk, he was escorted to the

hospital where an X ray revealed that he had a scalpel or razor

in his digestive tract. Petitioner was placed on a contraband

watch for the next few days, but no scalpel or similar object was
-2- 522051 

recovered. As a result, petitioner was charged in a misbehavior

report with smuggling, possession of a contraband weapon and

possession of an unauthorized item. Following a tier III

disciplinary hearing, petitioner was found guilty of the charges. 

The determination was affirmed on administrative appeal, and this

CPLR article 78 followed.

We confirm. The misbehavior report, hearing testimony and

the related documentary evidence, including the X rays, provide

substantial evidence to support the determination of guilt (see

Matter of Hall v Fischer, 87 AD3d 1235, 1236 [2011]; Matter of

Scott v Fischer, 75 AD3d 962, 962 [2010]; Matter of Gee v Goord,

21 AD3d 636, 637 [2005]). Although petitioner contends that the

determination should be annulled because no contraband was

recovered as a result of the contraband watch, we disagree. The

Hearing Officer found credible the X-ray evidence, which we have

examined, the testimony of the technician who interpreted it and

the misbehavior report wherein the author testified that

petitioner had told him that he disposed of the contraband

through defecation (see Matter of Hall v Fischer, 87 AD3d at

1236; Matter of Scott v Fischer, 75 AD3d at 963). 

Turning to petitioner's procedural contentions, contrary to

petitioner's claim, we do not find that he was denied adequate

employee assistance. The record reveals that the employee

assistant performed the services required. Further, inasmuch as

the employee assistant "may," but is not required to, "assist the

inmate in obtaining documentary evidence" (7 NYCRR 251-4.2),

petitioner's claim that he was denied effective employee

assistance because his assistant failed to obtain copies of

Department of Corrections and Community Supervision directives is

without support (cf. Matter of Guillory v Annucci, 125 AD3d 1024,

1025 [2015], lv denied 25 NY3d 905 [2015]). Moreover, to the

extent that petitioner claims that he was not provided with the

requested directives governing the procedures for the handling

and search of contraband (see generally 7 NYCRR 1010.4), those

directives, and any alleged failure by prison officials to adhere

to the procedures established therein, are irrelevant. Notably,

no contraband was recovered from petitioner's fecal matter, and

such evidence was not the evidentiary basis supporting the

Hearing Officer's determination of guilt (see Matter of Jones v
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Fischer, 139 AD3d 1219, 1220 [2016]; Matter of Mitchell v Bezio,

69 AD3d 1281, 1282 [2010]). While petitioner also avers that he

was improperly denied the right to call certain witnesses at the

hearing, the record demonstrates that petitioner specifically and

intelligently told the Hearing Officer during the hearing that he

waived his right to call any further witnesses (see Matter of

Brown v Barkley, 67 AD3d 1147, 1148 [2009], lv denied 14 NY3d 702

[2010]; Matter of Wilkerson v Coombe, 242 AD2d 834, 835 [1997]). 

In any event, petitioner failed to demonstrate that any of the

requested witnesses would have provided testimony relevant to the

charges or material to any evidence in dispute (see Matter of

Miller v Annucci, 131 AD3d 1304, 1305 [2015]). Petitioner's

remaining contentions, including his claim that the penalty

imposed was excessive, have been examined and found to be without

merit.

Lynch, Devine, Mulvey and Aarons, JJ., concur.

ADJUDGED that the determination is confirmed, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court