Opinion
892 TP 17–01593
09-28-2018
In the Matter of Jerry KNIGHT, Petitioner, v. John COLVIN, Superintendent, Five Points Correctional Facility, Respondent.
JERRY KNIGHT, PETITIONER PRO SE. BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF COUNSEL), FOR RESPONDENT.
JERRY KNIGHT, PETITIONER PRO SE.
BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Seneca County [Dennis F. Bender, A.J.], entered September 7, 2017) to review a determination of respondent. The determination found after a tier II hearing that petitioner had violated various inmate rules.
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.
Memorandum: Petitioner commenced this proceeding pursuant to CPLR article 78 seeking review of a determination, following a tier II disciplinary hearing, that he violated various inmate rules, including rule 104.13 ( 7 NYCRR 270.2 [B][5][iv] [creating a disturbance] ), rule 107.10 ( 7 NYCRR 270.2 [B][8][i] [interference with employee] ) and rule 107.11 ( 7 NYCRR 270.2 [B][8][ii] [harassment] ). Contrary to petitioner's contention, the misbehavior report, the testimony of the author of that report, and the testimony of other witnesses at the administrative hearing constitute substantial evidence to support the charges (see Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 [1990] ).
Contrary to petitioner's further contention, there is no indication in the record that "the determination of the Hearing Officer was influenced by [any] bias against petitioner. ‘The mere fact that the Hearing Officer ruled against ... petitioner is insufficient to establish bias’ " ( Matter of Wade v. Coombe, 241 A.D.2d 977, 977, 666 N.Y.S.2d 1023 [4th Dept. 1997] ; see Matter of Edwards v. Fischer, 87 A.D.3d 1328, 1329, 930 N.Y.S.2d 358 [4th Dept. 2011] ). Petitioner was not improperly denied the right to call witnesses inasmuch as one of the requested witnesses refused to testify, and the requested witnesses would have provided testimony that was redundant or immaterial (see 7 NYCRR 254.5 [a]; Matter of Encarnacion v. Annucci, 150 A.D.3d 1581, 1582, 55 N.Y.S.3d 516 [3d Dept. 2017], lv denied 30 N.Y.3d 903, 2017 WL 4697399 [2017] ; Matter of Green v. Sticht, 124 A.D.3d 1338, 1339, 1 N.Y.S.3d 670 [4th Dept. 2015], lv denied 26 N.Y.3d 906, 2015 WL 5553451 [2015] ).
Petitioner failed to exhaust his administrative remedies with respect to his remaining contentions, and thus this Court "has no discretionary power to reach" them ( Matter of Nelson v. Coughlin, 188 A.D.2d 1071, 1071, 591 N.Y.S.2d 670 [4th Dept. 1992], appeal dismissed 81 N.Y.2d 834, 595 N.Y.S.2d 396, 611 N.E.2d 297 [1993] ; see Matter of Gray v. Annucci, 144 A.D.3d 1613, 1614, 41 N.Y.S.3d 186 [4th Dept. 2016], lv denied 29 N.Y.3d 901, 2017 WL 1095335 [2017] ).