Opinion
521029.
02-04-2016
In the Matter of John A. RODRIGUEZ, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
John A. Rodriguez, Comstock, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondent.
John A. Rodriguez, Comstock, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondent.
Opinion
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 finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with assaulting staff, being out of place, making a false statement and refusing a direct order. The charges relate that petitioner attempted to join a group of inmates that had signed up to go to church by giving a false cell number. Petitioner was escorted back to his cell block and, instead of returning to his cell as directed, he hit a correction officer in the head. Following a tier III disciplinary hearing, petitioner was found guilty of all charges and that determination was affirmed upon administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. To the extent challenged by petitioner, the misbehavior report, related documentation and testimony from the correction officer involved in the incident provide substantial evidence to support the determination of guilt (see Matter of May v. Selsky, 291 A.D.2d 591, 592, 736 N.Y.S.2d 918 2002 ). Petitioner's contention that he was improperly denied the right to call a witness is belied by the record, which establishes that, in addition to the requested witness executing a refusal form noting the reason for not wanting to testify, the Hearing Officer personally interviewed the requested witness and verified that information (see Matter of Thurmond v. Fischer, 112 A.D.3d 1234, 1235, 976 N.Y.S.2d 750 2013; Matter of Tafari v. Fischer, 98 A.D.3d 763, 763, 949 N.Y.S.2d 540 2012, lv. denied 19 N.Y.3d 816, 2012 WL 5309737 2012 ). Petitioner's remaining contentions, including that he was denied both adequate employee assistance and the right to present documentary evidence, are unpreserved as they were not raised at the hearing (see Matter of Abrams v. Fischer, 109 A.D.3d 1030, 1031, 971 N.Y.S.2d 361 2013 ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.