Summary
holding that "[i]nasmuch as the requested witnesses had not previously agreed to testify and each signed a witness refusal form indicating the reason for refusal, petitioner's right to present witnesses was adequately protected"
Summary of this case from Hyatt v. AnnucciOpinion
12-18-2014
In the Matter of Rafael CORTORREAL, Appellant, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Matthew McGowan, Prisoners' Legal Services, Albany, for appellant. Eric T. Schneiderman, Attorney General, Albany (Julie M. Sheridan of counsel), for respondent.
Matthew McGowan, Prisoners' Legal Services, Albany, for appellant.
Eric T. Schneiderman, Attorney General, Albany (Julie M. Sheridan of counsel), for respondent.
Opinion Appeal from a judgment of the Supreme Court (Elliot III, J.), entered November 19, 2013 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.Petitioner was charged in a misbehavior report with smuggling and possessing a controlled substance. Following a tier III disciplinary hearing, he was found guilty as charged. That determination was affirmed on administrative appeal and this CPLR article 78 proceeding ensued. Supreme Court dismissed the petition, and petitioner now appeals.We affirm. We reject petitioner's contention that he was improperly denied witnesses during his disciplinary hearing. Inasmuch as the requested witnesses had not previously agreed to testify and each signed a witness refusal form indicating the reason for the refusal, petitioner's right to present witnesses was adequately protected (see Matter of Jamison v. Fischer, 119 A.D.3d 1306, 1306, 989 N.Y.S.2d 706 [2014] ; Matter of Tulloch v. Fischer, 90 A.D.3d 1370, 1371, 935 N.Y.S.2d 696 [2011] ; Matter of Tafari v. Fischer, 78 A.D.3d 1405, 1406, 913 N.Y.S.2d 777 [2010], lv. denied 16 N.Y.3d 704, 2011 WL 501326 [2011] ). Petitioner's remaining contentions have been reviewed and are either unpersuasive or have been rendered academic.
ORDERED that the judgment is affirmed, without costs.
LAHTINEN, J.P., STEIN, GARRY, ROSE and EGAN JR., JJ., concur.