Opinion
2014-09-11
In the Matter of David MORRISHILL, Petitioner, v. Albert PRACK, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
David Morrishill, Marcy, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
David Morrishill, Marcy, petitioner pro se.Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff 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 the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating a prison disciplinary rule.
After petitioner's urine twice tested positive for marihuana, he was charged in a misbehavior report with drug use. He was found guilty following a tier III disciplinary hearing, and that determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
While we agree with petitioner that the petition appears to raise only procedural issues and should not have been transferred to this Court, we will retain jurisdiction in the interest of judicial economy ( see Matter of Hernandez v. Fischer, 111 A.D.3d 1042, 1043 n., 974 N.Y.S.2d 666 [2013] ).
We confirm. Petitioner signed a document waiving his right to employee assistance and, when he requested assistance at the hearing, the Hearing Officer appropriately acted “by offering to provide him with whatever he would have requested from an assistant” ( Matter of Truman v. Fischer, 75 A.D.3d 1019, 1020, 907 N.Y.S.2d 343 [2010]; see Matter of Alvarez v. Fischer, 94 A.D.3d 1404, 1405, 942 N.Y.S.2d 711 [2012], lv. denied96 A.D.3d 1703, 2012 WL 2509920 [2012] ). The Hearing Officer properly denied petitioner's ensuing request for the testimony of a correction officer as irrelevant ( see Matter of Henderson v. Fischer, 98 A.D.3d 1162, 1163, 950 N.Y.S.2d 809 [2012] ). Likewise, petitioner was not entitled to a copy of the operator's manual for the testing equipment ( see Matter of Anderson v. Prack, 111 A.D.3d 1214, 1214, 975 N.Y.S.2d 706 [2013]; Matter of Kussius v. Walker, 247 A.D.2d 911, 912, 668 N.Y.S.2d 784 [1998]; but see Matter of Marshall v. Fischer, 103 A.D.3d 726, 728, 958 N.Y.S.2d 800 [2013] ). The Hearing Officer also appropriately denied petitioner's request for unredacted log book entries that would have identified other inmates who had been tested on the day in question ( see Matter of Lindo v. Fischer, 72 A.D.3d 1295, 1296, 903 N.Y.S.2d 543 [2010] ). Petitioner's remaining claims have been examined and found to be meritless.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
STEIN, J.P., ROSE, EGAN JR., DEVINE and CLARK, JJ., concur.