Opinion
2012-01-26
In the Matter of Steven LASHWAY, Appellant, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Steven Lashway, Alden, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), for respondent.
Steven Lashway, Alden, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), for respondent.
Before: SPAIN, J.P., MALONE JR., STEIN, McCARTHY and EGAN JR., JJ.
Appeal from a judgment of the Supreme Court (Hayden, J.), entered March 15, 2011 in Chemung 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.
Petitioner, a prison inmate, was being escorted back to his cell after a medical call out when he abruptly turned and attempted to strike a correction officer and, while subsequently being restrained, ignored several direct orders to stop resisting. As a result, petitioner was charged in a misbehavior report with attempted assault on staff, violent conduct, interference, movement violation and refusing a direct order. Following a tier III disciplinary hearing, he was found guilty of all charges. That determination was affirmed upon administrative appeal, after which petitioner commenced this CPLR article 78 proceeding. Supreme Court dismissed the petition and petitioner now appeals.
We affirm. To the extent that petitioner challenges the evidentiary basis for the determination, the misbehavior report, the hearing testimony of both the officer involved in the incident and petitioner's inmate witness and the supporting documentation provide substantial evidence of guilt ( see Matter of Argentieri v. Fischer, 87 A.D.3d 1242, 1242, 929 N.Y.S.2d 889 [2011]; Matter of Barnes v. Prack, 87 A.D.3d 1216, 1216, 930 N.Y.S.2d 291 [2011] ). Petitioner's contentions that he was, instead, assaulted by correction officers and that the misbehavior report was in retaliation for grievances he had submitted raised credibility questions for the Hearing Officer to resolve ( see Matter of White v. Fischer, 87 A.D.3d 1249, 1250, 930 N.Y.S.2d 306 [2011]; Matter of Barnes v. Prack, 87 A.D.3d at 1216–1217, 930 N.Y.S.2d 291).
Turning to the procedural claims, petitioner first contends that his employee assistance was deficient inasmuch as only five of his requested 12 potential inmate witnesses were interviewed prior to the hearing. In response to petitioner's complaint, the Hearing Officer adjourned the hearing and instructed the assistant to interview all 38 inmates who were housed on the block at the time of the incident. As such, we find that any inadequacies in petitioner's assistance were remedied at the time of the hearing ( see Matter of Barnes v. Bezio, 86 A.D.3d 884, 885, 927 N.Y.S.2d 472 [2011]; Matter of Tirado v. Goord, 50 A.D.3d 1332, 1333, 854 N.Y.S.2d 822 [2008] ). Further, we reject petitioner's claim that the Hearing Officer failed to make a meaningful effort to determine why certain inmate witnesses refused to testify. Each instance was documented by a signed form indicating the reason for such refusal ( see Matter of Barnes v. Prack, 87 A.D.3d at 1217, 930 N.Y.S.2d 291) and, in those cases in which inmates had originally agreed to testify and later refused, the Hearing Officer satisfied his obligation to make further inquiry ( see generally Matter of Hill v. Selsky, 19 A.D.3d 64, 66–67, 795 N.Y.S.2d 794 [2005] ). Finally, a review of the record demonstrates that the determination of guilt was the result of the ample evidence presented at the hearing, rather than any alleged bias on the part of the Hearing Officer ( see Matter of Polite v. Fischer, 87 A.D.3d 1212, 1212, 929 N.Y.S.2d 782 [2011] ).
Petitioner's remaining contentions have been examined and found to be either unpreserved or without merit.
ORDERED that the judgment is affirmed, without costs.