Opinion
2013-03-7
In the Matter of Michel TOLIVER, Petitioner, v. COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION et al., Respondents.
Michel Toliver, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondents.
Michel Toliver, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondents.
Before: ROSE, J.P., LAHTINEN, McCARTHY and GARRY, JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of respondent Superintendent of Shawangunk Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, was being escorted back to his cell by a correction officer who informed him that he could not enter his cell in his wheelchair. After refusing to leave the wheelchair, petitioner was given a direct order to exit the chair, which he ignored and then rolled the wheelchair into his cell. As a result, petitioner was served with a misbehavior report and, following a tier II disciplinary hearing, was found guilty of refusing a direct order and interfering with an employee. Upon administrative review, the finding of guilt on the charge of interfering with an employee was reversed, but the penalty of 30 days keeplock and loss of privileges remained the same. Petitioner then commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report and the testimony of both petitioner and the correction officer who authored the report provide substantial evidence to support the finding of guilt ( see Matter of Wright v. Fischer, 98 A.D.3d 759, 759, 949 N.Y.S.2d 819 [2012];Matter of Brown v. Fischer, 98 A.D.3d 770, 771, 948 N.Y.S.2d 779 [2012] ). Petitioner's claim that the misbehavior report was in retaliation for past grievances he had filed raised a credibility question for the Hearing Officer to resolve ( see Matter of Wright v. Fischer, 98 A.D.3d at 759, 949 N.Y.S.2d 819;Matter of Martin v. Fischer, 98 A.D.3d 774, 774, 949 N.Y.S.2d 798 [2012] ).
Turning to petitioner's procedural contentions, he was not improperly denied the right to call witnesses inasmuch as he refused to ask questions of the facility doctor when given the opportunity ( see Matter of Perkins v. Fischer, 78 A.D.3d 1355, 1356, 911 N.Y.S.2d 226 [2010] ), and the remaining witnesses requested were not present during the incident ( see Matter of Rosales v. Pratt, 98 A.D.3d 764, 765, 949 N.Y.S.2d 820 [2012],lv. denied19 N.Y.3d 816, 2012 WL 5309615 [2012] ). The fact that the Hearing Officer limited petitioner's questioning of the correction officer to relevant matters was not indicative of bias ( see Matter of Jackson v. Prack, 84 A.D.3d 1660, 1661, 923 N.Y.S.2d 368 [2011];Matter of Lee v. McCoy, 233 A.D.2d 633, 634, 649 N.Y.S.2d 842 [1996] ). Finally, we do not find the penalty assessed “so shocking to one's sense of fairness as to be excessive” ( Matter of Jackson v. Fischer, 90 A.D.3d 1432, 1434, 935 N.Y.S.2d 727 [2011] ).
Petitioner's remaining contentions have been examined and found to be either unpreserved or lacking in merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.