Opinion
2013-11-8
In the Matter of Terrence JONES, Petitioner–Appellant, v. Brian FISCHER, Commissioner, New York State Department of Corrections and Community Supervision, Respondent–Respondent.
Wyoming County–Attica Legal Aid Bureau, Warsaw (Adam W. Koch of Counsel), for Petitioner–Appellant. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of Counsel), for Respondent–Respondent.
Wyoming County–Attica Legal Aid Bureau, Warsaw (Adam W. Koch of Counsel), for Petitioner–Appellant. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of Counsel), for Respondent–Respondent.
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND VALENTINO, JJ.
MEMORANDUM:
Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a tier III disciplinary hearing, that he violated various inmate rules. We conclude that Supreme Court properly denied the amended petition. Contrary to the contention of petitioner, the inmate misbehavior reports provided him with adequate notice of the charges as required by 7 NYCRR 251–3.1(c). The misbehavior reports contained a written specification of the particulars of the alleged incidents of misbehavior; a reference to the inmate rule numbers allegedly violated by petitioner and a description of those rules; and the date, time, and place of the alleged incidents ( see id.). The misbehavior reports were therefore sufficiently specific to enable petitioner to prepare a defense ( see Matter of Gray v. Kirkpatrick, 59 A.D.3d 1092, 1093, 873 N.Y.S.2d 816;Matter of Dingle v. Goord, 244 A.D.2d 938, 938, 668 N.Y.S.2d 119).
Petitioner failed to preserve for our review his contention that the Hearing Officer improperly took unrecorded testimony from a correction officer outside of petitioner's presence inasmuch as he “failed to object at the hearing to the Hearing Officer's alleged off-the-record investigation” (Matter of Martinez v. Johnson, 255 A.D.2d 967, 967, 679 N.Y.S.2d 868;see Matter of Britt v. Evans, 100 A.D.3d 1408, 1409, 953 N.Y.S.2d 766). In any event, that contention is without merit ( see generally Matter of Abdur–Raheem v. Mann, 85 N.Y.2d 113, 124, 623 N.Y.S.2d 758, 647 N.E.2d 1266). Contrary to petitioner's further contention, even assuming, arguendo, that there was a violation of 7 NYCRR 251–4.2 based on the failure of petitioner's employee assistant to obtain requested evidence and to interview a certain witness, we conclude that the Hearing Officer remedied any alleged defect in the prehearing assistance by obtaining a copy of the evidence and taking the testimony of the witness at the hearing ( see Matter of Melendez v. Berbary, 89 A.D.3d 1524, 1525, 932 N.Y.S.2d 747,lv. denied19 N.Y.3d 804, 2012 WL 1988138;Gray, 59 A.D.3d at 1092–1093, 873 N.Y.S.2d 816).
Finally, contrary to petitioner's further contention, due process does not require that the Hearing Officer obtain testimony from the correction officers who wrote the misbehavior reports ( see People ex rel. Vega v. Smith, 66 N.Y.2d 130, 141, 495 N.Y.S.2d 332, 485 N.E.2d 997;Matter of Johnson v. Jones, 119 A.D.2d 906, 906, 500 N.Y.S.2d 858).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.