Opinion
2013-01-17
In the Matter of Gregory JONES, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Gregory Jones, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.
Gregory Jones, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.
Before: PETERS, P.J., MERCURE, SPAIN, STEIN and EGAN JR., JJ.
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, a prison inmate, was charged in a misbehavior report with refusing a direct order, smuggling, an unhygienic act, and failing to comply with staff instructions regarding a urinalysis. Following a tier III disciplinary hearing, petitioner was found guilty of the charges. Upon administrative appeal, respondent affirmed, prompting this CPLR article 78 proceeding.
Respondent concedes that the determination of failing to comply with staff instructions regarding a urinalysis must be annulled ( see Matter of Gittens v. Goord, 249 A.D.2d 622, 622, 670 N.Y.S.2d 633 [1998] ). The misbehavior report, related documentation and testimony at the hearing provide substantial evidence to support the determination of guilt on the remaining charges ( see id.; see also Matter of Mungo v. Bezio, 93 A.D.3d 1057, 1057–1058, 940 N.Y.S.2d 696 [2012],appeal dismissed19 N.Y.3d 919, 950 N.Y.S.2d 87, 973 N.E.2d 183 [2012]; Matter of Taylor v. Fischer, 87 A.D.3d 1256, 1256, 929 N.Y.S.2d 891 [2011],lv. denied18 N.Y.3d 803, 2012 WL 43829 [2012] ), and petitioner's exculpatory testimony presented a credibility question for the Hearing Officer to resolve ( see Matter of Montilla v. Prack, 95 A.D.3d 1580, 1581, 943 N.Y.S.2d 922 [2012];Matter of Billue v. Goord, 28 A.D.3d 845, 846, 812 N.Y.S.2d 175 [2006] ). Nevertheless, inasmuch as a loss of good time was imposed, the matter must be remitted to respondent for a redetermination of the penalty.
Petitioner's remaining claim, that his conditional right to call witnesses was violated, lacks merit. Although the Hearing Officer did not make any inquiry into an inmate witness's refusal to testify when petitioner objected to the absence of a signed witness refusal form or explanation of the circumstances of the refusal ( see Matter of Crosby v. Selsky, 24 A.D.3d 990, 991, 807 N.Y.S.2d 666 [2005] ), petitioner failed to respond when the Hearing Officer asked how the requested inmate's testimony was relevant, what the inmate would testify to, and whether the inmate was in the bathroom during the incident. Absent any indication that the requested testimony was relevant, annulment is not required ( see Matter of Davis v. Goord, 46 A.D.3d 955, 956, 846 N.Y.S.2d 770 [2007],lv. dismissed10 N.Y.3d 821, 858 N.Y.S.2d 647, 888 N.E.2d 388 [2008];Matter of Anderson v. Morrow, 268 A.D.2d 638, 639, 701 N.Y.S.2d 464 [2000];Matter of Konigsberg v. Selsky, 255 A.D.2d 702, 703, 680 N.Y.S.2d 701 [1998];see also Matter of Ross v. Bezio, 75 A.D.3d 1027, 1029, 907 N.Y.S.2d 520 [2010] ).
ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of failing to comply with staff instructions regarding a urinalysis and imposed a penalty; petition granted to that extent, respondent is directed to expunge all references thereto from petitioner's institutional record and matter remitted to respondent for an administrative redetermination of the penalty on the remaining violations; and, as so modified, confirmed.