Opinion
2014-03-26
In the Matter of Benjamin STEPHENS, Jr., petitioner, v. William A. LEE, etc., et al., respondents.
Benjamin Stephens, Jr., Stormville, N.Y., petitioner pro se. Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek and Matthew W. Grieco of counsel), for respondents.
Benjamin Stephens, Jr., Stormville, N.Y., petitioner pro se. Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek and Matthew W. Grieco of counsel), for respondents.
RUTH C. BALKIN, J.P., SANDRA L. SGROI, JEFFREY A. COHEN, and HECTOR D. LaSALLE, JJ.
Proceeding pursuant to CPLR article 78 to review a determination of the Superintendent of the Green Haven Correctional Facility, dated November 1, 2010, which affirmed a determination of a hearing officer dated September 13, 2010, made after a Tier III disciplinary hearing, finding the petitioner guilty of violating prison disciplinary rules 102.10 (7 NYCRR 270.2[B][3][i] ) and 104.11 (7 NYCRR 270.2[B][3][5][I]; [ii] ), and imposing penalties.
ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, without costs or disbursements.
Contrary to the petitioner's contention, the misbehavior report and the testimony of a prison official, among others, constituted substantial evidence to support the hearing officer's determination that the petitioner violated the subject prison disciplinary rules ( see Matter of Ojeda v. Venettozzi, 99 A.D.3d 914, 952 N.Y.S.2d 274;Matter of Reyes v. Goord, 49 A.D.3d 546, 851 N.Y.S.2d 889). The credibility issues were resolved by the hearing officer as the trier of fact, and we find no basis upon which to disturb his determination ( see Matter of Ojeda v. Venettozzi, 99 A.D.3d at 914, 952 N.Y.S.2d 274;Matter of Reyes v. Leclaire, 49 A.D.3d 884, 885, 853 N.Y.S.2d 899;Matter of Reyes v. Goord, 49 A.D.3d at 546, 851 N.Y.S.2d 889).
There is no merit to the petitioner's contention that he was deprived of his right to call certain witnesses. The hearing officer made reasonable, albeit unsuccessful, efforts to identify and locate a correction officer that the petitioner requested as a witness ( see Matter of Aguirre v. Fischer, 111 A.D.3d 1219, 975 N.Y.S.2d 814;Matter of Possert v. Fischer, 106 A.D.3d 1350, 1351, 965 N.Y.S.2d 258;Matter of Callender v. Selsky, 41 A.D.3d 1065, 1066, 837 N.Y.S.2d 793). The testimony of the petitioner's psychologist was not relevant as he had no personal knowledge of the incident ( see7 NYCRR 254.5[a]; Matter of Fero v. Prack, 110 A.D.3d 1128, 972 N.Y.S.2d 115;Matter of Rivera v. Prack, 97 A.D.3d 879, 880, 948 N.Y.S.2d 196). Further, the hearing officer used reasonable efforts to recall a nurse as a witness and, in any event, such testimony would have been redundant in light of the testimony of other witnesses ( see7 NYCRR 254.5[a]; Matter of Rahman v. Fischer, 59 A.D.3d 450, 451, 873 N.Y.S.2d 654).
The petitioner failed to demonstrate that the hearing officer was biased, as the record reveals that the hearing was conducted in a fair and impartial manner and that the determination was not the result of any alleged bias on the part of the hearing officer ( see Matter of Harris v. Kaplin, 102 A.D.3d 692, 693, 957 N.Y.S.2d 722;Matter of Carlisle v. Lee, 96 A.D.3d 837, 946 N.Y.S.2d 483;Matter of Reyes v. Leclaire, 49 A.D.3d at 885, 853 N.Y.S.2d 899).
Contrary to the petitioner's contention, the minor gaps and errors in the hearing transcript did not preclude meaningful review of the hearing ( see Matter of Gaston v. Fischer, 109 A.D.3d 1063, 1064, 971 N.Y.S.2d 376;Matter of Merritt v. Fischer, 108 A.D.3d 993, 994–995, 969 N.Y.S.2d 248;cf. Matter of White v. Fischer, 73 A.D.3d 1372, 900 N.Y.S.2d 695).
The petitioner's remaining contention is without merit.