Opinion
69 TP 18–01378
03-15-2019
In the Matter of Jahmel CLARK, Petitioner, v. Anthony ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent.
WYOMING COUNTY–ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER. BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (MARTIN A. HOTVET OF COUNSEL), FOR RESPONDENT.
WYOMING COUNTY–ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER.
BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (MARTIN A. HOTVET OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a tier III hearing, that he violated various inmate rules. Contrary to petitioner's contention, the misbehavior reports, hearing testimony, documentary evidence, and video evidence constitute substantial evidence supporting the determination that petitioner violated the applicable inmate rules (see generally Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 [1990] ; Matter of Jones v. Annucci, 141 A.D.3d 1108, 1108–1109, 33 N.Y.S.3d 807 [4th Dept. 2016] ).
Although we agree with petitioner that there was a violation of 7 NYCRR 251–4.2 based on the failure of his employee assistant to interview witnesses and to collect requested documentary and video evidence (see Matter of Gray v. Kirkpatrick , 59 A.D.3d 1092, 1092, 873 N.Y.S.2d 816 [4th Dept. 2009] ), we conclude that " ‘[t]he Hearing Officer remedied any alleged defect in the prehearing assistance’ " by obtaining that evidence and reviewing it with petitioner and by having relevant inmate witnesses interviewed and obtaining statements from them reflecting that they refused to testify at the hearing ( id. ; see also Matter of Jones v. Fischer , 111 A.D.3d 1362, 1363, 974 N.Y.S.2d 220 [4th Dept. 2013] ). Moreover, petitioner has not demonstrated that he was prejudiced by any of the employee assistant's shortcomings (see Matter of Coleman v. Goord , 39 A.D.3d 1048, 1048, 834 N.Y.S.2d 368 [3d Dept. 2007] ).
We also reject petitioner's contentions that he was denied his right to call certain witnesses and that the Hearing Officer did not sufficiently inquire into why the inmate witnesses refused to testify. The Hearing Officer obtained the list of inmates who were involved in the relevant callout and attempted to secure their testimony, but they each refused to testify. Petitioner's contention that the Hearing Officer was required to make a further inquiry into the inmates' respective refusals is unpreserved because petitioner failed to raise an objection on that ground at the hearing (see Matter of Blackwell v. Goord , 5 A.D.3d 883, 885, 772 N.Y.S.2d 761 [3d Dept. 2004], lv. denied 2 N.Y.3d 708, 781 N.Y.S.2d 289, 814 N.E.2d 461 [2004] ). In any event, that contention lacks merit. An inmate's right to present witnesses is violated when there has been "no inquiry at all into the reason for the witness's refusal to testify, without regard to whether the inmate previously agreed to testify" ( Matter of Hill v. Selsky , 19 A.D.3d 64, 66, 795 N.Y.S.2d 794 [3d Dept. 2005] ). "When the refusing witness gives no reason for the refusal, but that witness did not previously agree to testify, an inquiry by the hearing officer through a correction officer adequately protects the inmate's right to call witnesses" ( id. ). Here, there is no indication that any of the relevant inmate witnesses had previously agreed to testify at the hearing, and the Hearing Officer dispatched a correction officer, who ascertained that the relevant witnesses were unwilling to testify either because they did not want to become involved in the hearing or because they lacked relevant information. Additionally, the Hearing Officer properly denied petitioner's request to call non-inmate witnesses for the purpose of supporting petitioner's retaliation claim inasmuch as their testimony would have been redundant to information contained in the documentary evidence (see generally Matter of Inesti v. Rizzo , 155 A.D.3d 1581, 1582, 65 N.Y.S.3d 367 [4th Dept. 2017] ). Thus, petitioner was not deprived of his right to present witnesses.
Contrary to petitioner's further contention, the record does not establish " ‘that the Hearing Officer was biased or that the determination 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] ).