Opinion
893 TP 18–00274
10-05-2018
In the Matter of Darnell BALLARD, Petitioner, v. Susan KICKBUSH, Superintendent, Gowanda Correctional Facility, Respondent.
DARNELL BALLARD, PETITIONER PRO SE. BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF COUNSEL), FOR RESPONDENT.
DARNELL BALLARD, PETITIONER PRO SE.
BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the determinations are unanimously confirmed without costs and the petition is dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determinations, following separate tier II disciplinary hearings, that he violated the inmate rules alleged in two unrelated misbehavior reports. Petitioner was charged in the first misbehavior report with violating inmate rules 106.10 ( 7 NYCRR 270.2 [B][7][i] [refusing direct order] ), 121.12 ( 7 NYCRR 270.2 [B][22][iii] [telephone program violation] ), and 181.10 ( 7 NYCRR 270.2 [B][27][i] [noncompliance with hearing disposition] ). Petitioner was thereafter charged in the second misbehavior report with violating inmate rules 100.13 ( 7 NYCRR 270.2 [B][1][iv] [fighting] ) and 104.11 ( 7 NYCRR 270.2 [B][5][ii] [violent conduct] ).
Contrary to petitioner's contention, a misbehavior report standing alone can constitute substantial evidence in support of the determination that he violated inmate rules, and we conclude that both misbehavior reports did so here (see Matter of Perez v. Wilmot , 67 N.Y.2d 615, 616–617, 499 N.Y.S.2d 659, 490 N.E.2d 526 [1986] ; Matter of McMillian v. Lempke , 149 A.D.3d 1492, 1493, 52 N.Y.S.3d 771 [4th Dept. 2017], appeal dismissed 30 N.Y.3d 930, 62 N.Y.S.3d 292, 84 N.E.3d 964 [2017] ). With respect to the first misbehavior report, any inconsistencies in the correction officer's description of the incident in that report presented a credibility issue for the Hearing Officer to resolve (see Matter of Foster v. Coughlin , 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 [1990] ). With respect to the second misbehavior report, petitioner's claim that he was merely defending himself and never threw a closed fist punch also presented an issue of credibility for resolution by the Hearing Officer (see id. ).
With respect to both misbehavior reports, the record does not establish " ‘that the Hearing Officer was biased or that the determination[s] flowed from the alleged bias’ " ( Matter of Colon v. Fischer , 83 A.D.3d 1500, 1501, 921 N.Y.S.2d 441 [4th Dept. 2011] ; see Matter of Rodriguez v. Herbert , 270 A.D.2d 889, 890, 706 N.Y.S.2d 284 [4th Dept. 2000] ). "The mere fact that the Hearing Officer ruled against ... petitioner is insufficient to establish bias" ( Matter of Edwards v. Fischer , 87 A.D.3d 1328, 1329, 930 N.Y.S.2d 358 [4th Dept. 2011] [internal quotation marks omitted]; see Matter of Wade v. Coombe , 241 A.D.2d 977, 977, 666 N.Y.S.2d 1023 [4th Dept. 1997] ).
With respect to the first misbehavior report, the Hearing Officer properly denied petitioner's request to call as a witness a prison employee who could testify whether the telephone was actually being used during the time that the officer observed petitioner on the telephone inasmuch as such testimony is not relevant (see Matter of Cunningham v. Annucci , 153 A.D.3d 1491, 1492, 59 N.Y.S.3d 907 [3d Dept. 2017] ). Although an inmate has a "conditional right" to call witnesses ( Matter of Dawes v. Selsky , 265 A.D.2d 825, 825, 696 N.Y.S.2d 327 [4th Dept. 1999], lv denied 94 N.Y.2d 756, 703 N.Y.S.2d 73, 724 N.E.2d 769 [1999] ), an inmate is not entitled to call witnesses whose testimony is immaterial or redundant (see 7 NYCRR 254.5 [a] ). Here, the proposed witness testimony is not relevant because, even if petitioner was caught by the officer before he actually dialed a number, his attempt to use the telephone is a violation of the inmate rule (see 7 NYCRR 270.3 [b]; see generally Matter of Melendez v. Goord , 242 A.D.2d 881, 881, 662 N.Y.S.2d 334 [4th Dept. 1997] ).
Petitioner's remaining contentions are not preserved for our review because petitioner failed to raise them at his hearing (see Matter of Allah v. Fischer , 118 A.D.3d 1507, 1507, 987 N.Y.S.2d 920 [4th Dept. 2014] ), and he failed to exhaust his administrative remedies with respect to them because he did not raise them on his administrative appeal (see Matter of Stewart v. Fischer , 109 A.D.3d 1122, 1123, 971 N.Y.S.2d 618 [4th Dept. 2013], lv denied 22 N.Y.3d 858, 2013 WL 6598719 [2013] ; Matter of Nelson v. Coughlin , 188 A.D.2d 1071, 1071, 591 N.Y.S.2d 670 [4th Dept. 1992], appeal dismissed 81 N.Y.2d 834, 595 N.Y.S.2d 396, 611 N.E.2d 297 [1993] ).