At page 832 Determining harmless error and sufficiency of evidence14 citing cases“Moreover, inasmuch-as the Hearing Officer did not rely on the unusual incident report in reaching his determination, we find that any error was harmless (see Matter of Cody v Goord, 17 AD3d 943, 944 [2005]; Matter of Moore v Goord, 255 AD2d 640, 641 [1998], lv denied 93 NY2d 802 [1999]).”
- Matter of Shearer v. Annucci, 155 A.D.3d 1277 (N.Y. App. Div. 3d Dep't 2017).publishedAccordingly, inasmuch as the Hearing Officer did not rely on the information on the photograph card in reaching his determination, the error was harmless (see Matter of Justice v Fischer, 67 AD3d 1286, 1287 [2009], lv denied 14 NY3d 709 [2…
- Matter of Reyes v. Keyser, 150 A.D.3d 1502 (N.Y. App. Div. 3d Dep't 2017).publishedIn our view, any additional testimony would have been redundant (see Matter of Baxton v Annucci, 142 AD3d 1235, 1236 [2016]; Matter of Seymour v Goord, 24 AD3d 831, 832 [2005], lv denied 6 NY3d 711 [2006]) and petitioner has not establishe…
- Hogan v. Fischer, 90 A.D.3d 1544 (N.Y. App. Div. 4th Dep't 2011).publishedIn addition, petitioner’s contention that the Hearing Officer improperly denied his request for documentary evidence is without merit because “the documentary evidence sought by petitioner . . . was not in dispute” (Matter of Davis v Goord…
- Rahman v. Fischer, 59 A.D.3d 450 (N.Y. App. Div. 2d Dep't 2009).publishedThe proposed witness would have presented testimony that was redundant in light of the testimony of other witnesses (see 7 NYCRR 254.5 [a]; Matter of Igartua v Selsky, 41 AD3d 717 [2007]; Matter of Pettus v West, 28 AD3d 907, 908 [2006]; M…
- Perretti v. Fischer, 58 A.D.3d 999 (N.Y. App. Div. 3d Dep't 2009).publishedGiven that petitioner’s motive for seeking Cassell’s address and feelings toward Cassell were not an element of the charge (see 7 NYCRR 270.2 [B] [14] [xvi]), we find no error in the Hearing Officer’s conclusion that the requested testimon…
- Costantino v. Goord, 38 A.D.3d 657 (N.Y. App. Div. 2d Dep't 2007).publishedThe record indicates that the testimony of the requested witness would not have been relevant to the issue of the petitioner’s guilt (see Matter of Hynes v Goord, supra; Matter of Seymour v Goord, 24 AD3d 831, 832 [2005]).
- McIver v. Goord, 37 A.D.3d 943 (N.Y. App. Div. 3d Dep't 2007).publishedUnder such circumstances, any error in failing to produce the document was harmless (see Matter of Seymour v Goord, 24 AD3d 831, 832 [2005], lv denied 6 NY3d 711 [2006]).
- Williams v. Goord, 36 A.D.3d 1033 (N.Y. App. Div. 3d Dep't 2007).publishedSimilarly, we find nothing improper in the denial of petitioner’s request to call 10 correction officers as witnesses, as the record indicates that their testimony would have been irrelevant or redundant to the testimony of the officers wh…
- Fontaine v. Superintendent of Southport Corr. Facility, 35 A.D.3d 1113 (N.Y. App. Div. 3d Dep't 2006).publishedAs for the other inmates, who had both transferred to different facilities and would not give reasons for their refusals to testify, the record indicates that a sufficient inquiry by the Hearing Officer through a correction officer was mad…
- Davis v. Goord, 34 A.D.3d 1027 (N.Y. App. Div. 3d Dep't 2006).publishedThe record reveals that the proffered testimony was either irrelevant to the issue of petitioner’s guilt or redundant to prior testimony (see Matter of Seymour v Goord, 24 AD3d 831, 832 [2005], lv denied 6 NY3d 711 [2006]; Matter of Burgos…
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- Hynes v. Goord, 30 A.D.3d 652 (N.Y. App. Div. 3d Dep't 2006).publishedAccordingly, the Hearing Officer’s denial of those witnesses was appropriate (see Matter of Seymour v Goord, 24 AD3d 831, 832 [2005], lv denied 6 NY3d 711 [2006]; Matter of Trammell v Selsky, 10 AD3d 787, 788-789 [2004]).
- Jiminez v. Selsky, 29 A.D.3d 1246 (N.Y. App. Div. 3d Dep't 2006).publishedConsequently, that part of the determination must be annulled and all references thereto expunged from petitioner’s institutional record. * Finally, we find no merit to petitioner’s assertion that he was denied the right to present witness…
- Lebron v. McGinnis, 26 A.D.3d 658 (N.Y. App. Div. 3d Dep't 2006).publishedFinally, petitioner was not improperly denied documents or witnesses inasmuch as the evidence in question was either irrelevant or unavailable (see Matter of Seymour v Goord, 24 AD3d 831, 832 [2005]).
- Vassell v. Goord, 26 A.D.3d 547 (N.Y. App. Div. 3d Dep't 2006).publishedThe misbehavior report, the testimony of the authoring correction officer and the documentary evidence presented at the hearing provide substantial evidence to support the determination of guilt (see Matter of Seymour v Goord, 24 AD3d 831,…
At page 831 Review of disciplinary hearing evidence and due process10 citing casesSpain, 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…
- Matter of Malloy v. Rodriguez, 200 A.D.3d 1382 (N.Y. App. Div. 3d Dep't 2021).publishedIn any event[*2], we have reviewed the report, "which does not contain any information exonerating petitioner of his guilt, nor has petitioner established that his ability to present a defense was prejudiced by not having received a copy o…
- Matter of Davey v. Annucci, 153 A.D.3d 992 (N.Y. App. Div. 3d Dep't 2017).publishedMoreover, petitioner is unable to demonstrate any prejudice from any alleged deficiencies where, as here, the requested documentation did not contain any exculpatory information (see Matter of Proctor v Fischer, 107 AD3d 1267, 1268 [2013],…
- Matter of Cruz v. Annucci, 152 A.D.3d 1100 (N.Y. App. Div. 3d Dep't 2017).publishedFurther, petitioner received all of the existing and relevant documents that he requested; to the extent that petitioner claims that he was denied access to the unusual incident report, he did not make a request for that report, and, even…
- Gaston v. Fischer, 109 A.D.3d 1063 (N.Y. App. Div. 3d Dep't 2013).published We have reviewed the final report, which does not contain any information exonerating petitioner of his guilt, nor has petitioner established that his ability to present a defense was prejudiced by not having received a copy of such report…
- Phelps v. Fischer, 108 A.D.3d 1003 (N.Y. App. Div. 3d Dep't 2013).published Our review of the final report reveals that it does not contain any information exonerating petitioner of his guilt, and petitioner has not shown that the failure to have a copy of the report prejudiced his ability to raise a defense (see…
- Proctor v. Fischer, 107 A.D.3d 1267 (N.Y. App. Div. 3d Dep't 2013).published Additionally, to the extent that petitioner alleges that he did not receive the unusual incident report, any error was harmless because it contained no exculpatory information (see Matter of Seymour v Goord, 24 AD3d 831, 831-832 [2005], lv…
- Just. v. Fischer, 67 A.D.3d 1286 (N.Y. App. Div. 3d Dep't 2009).publishedOur review of the report, however, reveals that it does not contain any information exonerating petitioner of his guilt for failing to report an injury (see Matter of Seymour v Goord, 24 AD3d 831, 831-832 [2005], lv denied 6 NY3d 711 [2006…
v.
Glenn S. Goord, as Commissioner of Correctional Services
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.
Following a lengthy tier III disciplinary hearing, petitioner was found guilty of assaulting a fellow inmate and making false or misleading statements to a correction officer in violation of prison disciplinary rules prohibiting such conduct. Upon administrative review, respondent reduced the penalty imposed but upheld the finding of guilt. Petitioner thereafter commenced this proceeding pursuant to CPLR article 78 challenging the determination.
Petitioner contends that he was denied his right to receive relevant documentary evidence in that he was provided with a substantially redacted copy of the unusual incident report and he was prejudiced by the failure of his employee assistant to request a less redacted copy. The record contains a more[*832] complete copy of the unusual incident report which does not include any information exonerating petitioner of his guilt nor does it support his defense theory (see Matter of Hodges v Murphy, 246 AD2d 701, 701-702 [1998]). Moreover, inasmuch-as the Hearing Officer did not rely on the unusual incident report in reaching his determination, we find that any error was harmless (see Matter of Cody v Goord, 17 AD3d 943, 944 [2005]; Matter of Moore v Goord, 255 AD2d 640, 641 [1998], lv denied 93 NY2d 802 [1999]).
Petitioner also contends that he was denied his right to call several witnesses (see 7 NYCRR 254.5). The record indicates that the requested witnesses were either irrelevant to the issue of petitioner’s guilt or redundant to the testimony of previous witnesses. Accordingly, the Hearing Officer’s denials were appropriate (see Matter of Perez v Goord, 6 AD3d 774, 775 [2004]; Matter of Melendez v Goord, 288 AD2d 791, 792 [2001]). With regard to petitioner’s argument that the efforts to secure the victim’s testimony were inadequate, we note that the victim, who had never agreed to testify, signed a witness refusal form— which was incorporated into the hearing record—stating that his reason for refusing to testify was that he had “nothing to say” about the incident (see Matter of Cody v Goord, supra at 945; see also Matter of Hill v Selsky, 19 AD3d 64, 66 [2005]). Moreover, petitioner made no objection during the hearing to the sufficiency of the efforts made and, thus, he is precluded from raising the issue before this Court (see Matter of Ryan v Goord, 12 AD3d 799, 800 [2004]; Matter of Perez v Goord, 300 AD2d 956, 957 [2002]).
Contrary to petitioner’s contentions, the record does not indicate that the determination of guilt flowed from any alleged hearing officer bias; rather, the determination was based upon substantial evidence adduced at the hearing, including the misbehavior report and the testimony of the reporting officer as well as the testimony of other correction officials on duty at the time of the incident (see Matter of Brown v Cunningham, 17 AD3d 886, 888 [2005], lv denied 5 NY3d 705 [2005]; Matter of Porter v Goord, 7 AD3d 847, 848 [2004]). Additionally, the Hearing Officer properly relied upon the information provided by several confidential sources (see Matter of Berry v Portuondo, 6 AD3d 848, 849 [2004]). Petitioner’s remaining contentions have been considered and determined to be without merit.
Cardona, P.J., Crew III, Peters and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.