Opinion
2012-07-5
In the Matter of Hector RIVERA, Petitioner, v. Albert PRACK, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Hector Rivera, Attica, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
Hector Rivera, Attica, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
Before: MERCURE, J.P., SPAIN, KAVANAGH, STEIN and GARRY, JJ.
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 directed that petitioner be placed in administrative segregation.
Petitioner, an inmate, was served with a written recommendation that he be placed in administrative segregation because he was suspected of being a member of an unauthorized group and “ordered the assault of other inmates.” Following a hearing and ensuing determination that petitioner posed a danger to the safety and security of the facility, the recommendation was sustained. That determination was affirmed upon administrative appeal and this CPLR article 78 proceeding ensued.
While it appears undisputed that petitioner is now released from administrative segregation, “it does not render moot his request for expungement of this determination from his record” (Matter of Cross v. Selsky, 271 A.D.2d 815, 816, 706 N.Y.S.2d 746 [2000] ).
We confirm. Initially, we reject petitioner's challenge to the sufficiency of the hearing transcript. Despite the fact that a damaged tape prevented a portion of the hearing from being transcribed, the remaining transcript was sufficient to provide meaningful review of those arguments advanced by petitioner on appeal ( see Matter of Graziano v. Goord, 272 A.D.2d 701, 702, 708 N.Y.S.2d 910 [2000] ). The record, including the written recommendation for administrative segregation and the detailed confidential information and testimony, provide substantial evidence for the determination that petitioner's “presence in [the] general population would pose a threat to the safety and security of the facility” (7 NYCRR 301.4 [b]; see Matter of Sutton v. Selsky, 52 A.D.3d 1135, 1135–1136, 860 N.Y.S.2d 311 [2008] ). Notably, petitioner's contention that the Hearing Officer failed to consider his testimony at the hearing is unsupported in the record.
Turning to petitioner's remaining procedural arguments, we are similarly unpersuaded. Contrary to his assertion, the notice provided in the administrative segregation recommendation was sufficient under the circumstances to provide him with due process ( see Matter of Roe v. Selsky, 250 A.D.2d 935, 935–936, 673 N.Y.S.2d 238 [1998] ). Moreover, the record confirms that the Hearing Officer did not err in denying petitioner's request to call witnesses to testify as to his “routine daily activities and character,” inasmuch as such testimony would not be “material” (7 NYCRR 254.5[a]; see Matter of Fludd v. New York State Dept. of Correctional Servs., 62 A.D.3d 1149, 1153, 879 N.Y.S.2d 606 [2009],lv. denied13 N.Y.3d 705, 2009 WL 2924816 [2009];Matter of Curtis v. Coombe, 234 A.D.2d 752, 753, 651 N.Y.S.2d 653 [1996] ). Further, the fact that one witness testified by speakerphone is not a basis for reversal ( see Matter of Murphy v. Goord, 272 A.D.2d 730, 730–731, 708 N.Y.S.2d 916 [2000] ), nor are we persuaded that the Hearing Officer's determination was flawed because confidential proof and testimony were taken outside petitioner's presence ( see Matter of Torres v. Doling, 257 A.D.2d 928, 929, 684 N.Y.S.2d 671 [1999] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.