Opinion
2011-08-4
In the Matter of Dorian DIAZ, Appellant,v.Brian FISCHER, as Commissioner of Correctional Services, Respondent.
Dorian Diaz, Auburn, appellant pro se.Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Appeal from a judgment of the Supreme Court (McNamara, J.), entered December 6, 2010 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.
Following an investigation into an incident in which an inmate was stabbed eight times, petitioner was charged in a misbehavior report with assault as an accessory, violent conduct as an accessory, and making false statements. Petitioner was found guilty of all three charges after a tier III disciplinary hearing. The determination was upheld on administrative appeal. Petitioner then commenced this CPLR article 78 proceeding, which
was dismissed by Supreme Court. Petitioner now appeals.
We affirm. We are not persuaded by petitioner's contention that he was deprived of his right to call the inmate victim as a witness. The record reflects that, although the inmate victim previously agreed to testify, he changed his mind and refused to provide a reason. The Hearing Officer personally interviewed the inmate victim in an attempt to elicit further explanation from him but he refused to provide a specific reason for his refusal. Accordingly, petitioner's right to call the inmate victim as a witness was adequately protected ( see 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]; Matter of Hill v. Selsky, 19 A.D.3d 64, 66–67, 795 N.Y.S.2d 794 [2005] ). Contrary to petitioner's assertions, the record reflects that the hearing was fair and impartial, and that the Hearing Officer did not prejudge petitioner's guilt ( see Matter of Hayes v. Fischer, 70 A.D.3d 1085, 1086, 897 N.Y.S.2d 523 [2010]; Matter of McClean v. Coombe, 242 A.D.2d 846, 847, 662 N.Y.S.2d 277 [1997] ). The determination of guilt resulted from the misbehavior report, unusual incident report, testimony adduced at the hearing and confidential information, and not from any alleged bias on the part of the Hearing Officer ( see Matter of Hayes v. Fischer, 70 A.D.3d at 1086, 897 N.Y.S.2d 523; Matter of Sime v. Goord, 30 A.D.3d 887, 889, 817 N.Y.S.2d 733 [2006], lv. denied 7 N.Y.3d 717, 826 N.Y.S.2d 605, 860 N.E.2d 67 [2006] ). Petitioner's remaining contentions were not previously raised at the hearing or in his petition and, therefore, are not properly before us.
ORDERED that the judgment is affirmed, without costs.