Opinion
Decided and Entered: September 20, 2001.
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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.
Jeffrey M. Culbreath, Elmira, petitioner in person.
Eliot Spitzer, Attorney-General (Patrick Barnett-Mulligan of counsel), Albany, for respondent.
Before: Crew III, J.P., Peters, Mugglin, Rose and Lahtinen, JJ.
We reject petitioner's claim that upon his administrative appeal which resulted in the reversal of the initial determination finding him guilty of violating certain prison disciplinary rules, the Commissioner of Correctional Services erred in directing that a new hearing be held (see, Matter of Stephens v. Goord, 273 A.D.2d 656, lv denied 95 N.Y.2d 766). Also lacking in merit is petitioner's claim that he was deprived of the right to call witnesses when the Hearing Officer refused to recall a witness at petitioner's request. According to petitioner, the recall of the correction officer who authored one of the misbehavior reports was necessary to clarify whether the charge of possession of a weapon in that report was based on the officer's speculation. Petitioner was not found guilty of that weapon charge, however, and he therefore was not prejudiced by the refusal to recall the witness who, in any event, presented testimony that did not require clarifying. Contrary to petitioner's remaining argument, the second weapon possession charge, based upon the discovery of a sharpened metal object in petitioner's rectum, was supported by substantial evidence. Petitioner's claim that the item could not be found to be a weapon because it was not contraband is specious.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.