Opinion
2011-09-29
In the Matter of John WHITE, Petitioner,v.Brian FISCHER, as Commissioner of Correctional Services, Respondent.
John White, Malone, petitioner pro se.Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
John White, Malone, petitioner pro se.Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
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 respondent which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was being escorted to recreation with other inmates when he was ordered to submit to a pat frisk. After petitioner refused to place his hands in the proper position, a correction officer placed his hand in the middle of petitioner's back, at which point petitioner turned and struck the officer in the face with a closed fist. As a result, petitioner was served with a misbehavior report charging him with assaulting staff, violent conduct, refusing a direct order and violating frisk procedures. Following a tier III disciplinary hearing, petitioner was found guilty of all charges. That determination was affirmed on administrative appeal and petitioner commenced this CPLR article 78 proceeding.
We confirm. To the extent that petitioner argues that the determination was not supported by substantial evidence, the misbehavior report, hearing testimony and supporting documentation provide the requisite quantum of proof to support the determination of guilt ( see Matter of Cody v. Fischer, 84 A.D.3d 1651, 1651, 923 N.Y.S.2d 910 [2011]; Matter of Williams v. Fischer, 84 A.D.3d 1661, 1662, 923 N.Y.S.2d 913 [2011], lv. denied 17 N.Y.3d 711, 2011 WL 4389164 [Sept. 22, 2011] ). Petitioner's claim that the report was issued in retaliation for grievances he had filed raised a credibility question for the Hearing Officer to resolve ( see Matter of Phipps v. Fischer, 82 A.D.3d 1396, 1397, 918 N.Y.S.2d 385 [2011]; Matter of Lamphear v. Fischer, 76 A.D.3d 1166, 1166, 907 N.Y.S.2d 756 [2010] ). Additionally, petitioner's claim that his right to attend the hearing was violated is unavailing inasmuch as he waived his right to participate ( see 9 NYCRR 7006.8[c]; see generally Matter of Williams v. Bezio, 79 A.D.3d 1556, 1557, 916 N.Y.S.2d 247 [2010], lv. denied 16 N.Y.3d 710, 2011 WL 1236298 [2011] ).
Turning to petitioner's procedural challenges, we reject petitioner's contention that his employee assistance was inadequate, inasmuch as the record demonstrates that he refused such assistance when offered ( see e.g. Matter of Barnwell v. Goord, 268 A.D.2d 725, 726, 701 N.Y.S.2d 501 [2000], lv. denied 95 N.Y.2d 751, 711 N.Y.S.2d 153, 733 N.E.2d 225 [2000] ). In any event, the Hearing Officer provided petitioner with the requested documents that were relevant and adjourned the hearing to give petitioner time to review them ( see Matter of Hernandez v. Fischer, 79 A.D.3d 1544, 1545–1546, 917 N.Y.S.2d 714 [2010], lv. denied 16 N.Y.3d 710, 2011 WL 1584763 [2011] ). Finally, petitioner's right to call witnesses was not violated, inasmuch as the testimony of the proposed witnesses who were denied would have been irrelevant ( see Matter of Canty v. Esgrow, 83 A.D.3d 1322, 1322, 921 N.Y.S.2d 410 [2011], lv. denied 17 N.Y.3d 705, 2011 WL 2566523 [2011];
Matter of Harvey v. Bradt, 81 A.D.3d 1003, 1004, 921 N.Y.S.2d 335 [2011] ).
We have examined petitioner's remaining claims and find them to be either unpreserved or without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.