Opinion
2013-05-23
In the Matter of Mark POSSERT, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Mark Possert, Dannemora, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Mark Possert, Dannemora, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: , P.J., LAHTINEN, STEIN and GARRY, JJ.
, P.J.
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 was charged in a misbehavior report with fighting, violent conduct and false statements after he sustained a six to eight-inch, bone-deep laceration while in the prison yard. Following a tier III disciplinary hearing, he was found guilty of all charges. That determination was upheld upon administrative review, prompting petitioner to commence this CPLR article 78 proceeding, which was transferred to this Court.
Although this proceeding was improperly transferred, as no issue of substantial evidence was raised in the petition, we will retain jurisdiction and address the merits in the interest of judicial economy ( see Matter of Dillard v. Fischer, 98 A.D.3d 761, 761, 949 N.Y.S.2d 539 [2012] ).
We confirm. The Hearing Officer did not err in taking the testimony of certain witnesses by speaker phone, as a witness's physical presence at a disciplinary hearing is not required ( see Matter of Piper v. Bezio, 81 A.D.3d 1049, 1050, 916 N.Y.S.2d 319 [2011];Matter of Davis v. Prack, 58 A.D.3d 977, 977, 872 N.Y.S.2d 565 [2009] ). Furthermore, gaps in the hearing transcript do not preclude meaningful judicial review ( see Matter of Ramsey v. Fischer, 93 A.D.3d 1000, 1002, 940 N.Y.S.2d 350 [2012],lv. dismissed19 N.Y.3d 955, 950 N.Y.S.2d 102, 973 N.E.2d 200 [2012]; Matter of Piper v. Bezio, 81 A.D.3d at 1050, 916 N.Y.S.2d 319). The Hearing Officer made reasonable, albeit unsuccessful, efforts to obtain the testimony of a physician from the hospital at which petitioner was treated ( see Matter of Vizcaino v. Selsky, 26 A.D.3d 574, 575, 808 N.Y.S.2d 825 [2006],lv. denied7 N.Y.3d 708, 821 N.Y.S.2d 813, 854 N.E.2d 1277 [2006];Matter of Otero v. Goord, 17 A.D.3d 805, 806–807, 792 N.Y.S.2d 728 [2005] ). In any event, the physician's testimony would have been redundant, as petitioner was able to question three other medical witnesses in his attempt to support his argument that the laceration was the result of a fall, rather than a fight ( see Matter of Brown v. Taylor, 62 A.D.3d 1230, 1231, 882 N.Y.S.2d 321 [2009] ). Finally, we find no evidence of bias by the Hearing Officer ( see Matter of Wright v. Fischer, 98 A.D.3d 759, 760, 949 N.Y.S.2d 819 [2012];Matter of Suero v. Fischer, 95 A.D.3d 1509, 1510, 943 N.Y.S.2d 809 [2012] ). Petitioner's remaining contentions are either unpreserved or without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
LAHTINEN, STEIN and GARRY, JJ., concur.