At page 1327 Reviewing disciplinary findings and witness testimony issues18 citing casesProceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review two determinations of…
- Wilson v. Annucci, 148 A.D.3d 1281 (N.Y. App. Div. 3d Dep't 2017).published Matter of Tafari v Selsky, 40 AD3d 1172, 1173 [2007]; Matter of Rush v Goord, 2 AD3d at 1186 ; cf. Matter of Toliver v New York State Commr. of Corr. & Community Supervision, 114 AD3d 987 , 988 [2014]; Matter of Barnes v Prack, 109 AD3d at…
- Toliver v. New York State Comm'r of Corr. & Cmty. Supervision, 114 A.D.3d 987 (N.Y. App. Div. 3d Dep't 2014).published Lastly, inasmuch as two correction officers and the Hearing Officer spoke to petitioner and personally confirmed his refusal to attend the dispositional phase of the hearing, we find no error in the Hearing Officer’s continuance of the hea…
- Bermudez v. Fischer, 107 A.D.3d 1269 (N.Y. App. Div. 3d Dep't 2013).published Further, we reject petitioner’s claim that he was denied the right to be present at the hearing given that he attended part of it but refused to attend the final phase even though he was informed by a correction officer that it would be co…
- Blocker v. Fischer, 107 A.D.3d 1285 (N.Y. App. Div. 3d Dep't 2013).published Inasmuch as the nurse did not witness the incident and had documented petitioner’s injuries in a use of force report that was admitted into evidence, her testimony would have been irrelevant and redundant (see Matter of Valerio v New York…
- Tafari v. Fischer, 98 A.D.3d 763 (N.Y. App. Div. 3d Dep't 2012).published In that regard, we note that three of these individuals were either not employees of petitioner’s current correctional facility or had no firsthand knowledge of the circumstances giving rise to petitioner’s charges, and the correction offi…
- Abreu v. Bezio, 84 A.D.3d 1596 (N.Y. App. Div. 3d Dep't 2011).publishedAt each disciplinary hearing, the escort officers testified that petitioner refused to attend, despite being advised that the hearings would proceed in his absence (see Matter of Haden v Prack, 62 AD3d 1133, 1134 [2009]; Matter of Morris v…
- Valerio v. New York State Dep't of Corr. Servs., 67 A.D.3d 1228 (N.Y. App. Div. 3d Dep't 2009).publishedWe find no error in the Hearing Officer’s denial of petitioner’s request to recall a particular witness inasmuch as the testimony that petitioner sought to elicit would have been redundant or irrelevant to the charges (see Matter of Sheppa…
- Haden v. Prack, 62 A.D.3d 1133 (N.Y. App. Div. 3d Dep't 2009).publishedRegarding petitioner’s assertion that he was improperly excluded from the final day of the hearing, the record reveals that petitioner refused to attend despite being advised that the hearing would continue even in his absence (see Matter…
- Sutherland v. Selsky, 61 A.D.3d 1188 (N.Y. App. Div. 3d Dep't 2009).publishedContrary to petitioner’s assertion, the Hearing Officer properly refused to call certain civilian witnesses because they had no personal knowledge of the incident and, thus, their testimony would have been redundant or irrelevant to the ch…
- Peets v. Bezio, 59 A.D.3d 833 (N.Y. App. Div. 3d Dep't 2009).publishedTo the extent that petitioner argues that he was denied the testimony of a particular correction officer, the record reveals that such testimony was properly precluded (see Matter of Sutherland v Selsky, 56 AD3d 833 , 834 [2008]; Matter of…
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- Farrow v. Prack, 57 A.D.3d 1065 (N.Y. App. Div. 3d Dep't 2008).publishedThe determination of guilt is supported by substantial evidence in the form of the detailed misbehavior report, hearing testimony from the correction sergeant who authored the report, and confidential hearing testimony considered by the He…
- Sutherland v. Selsky, 56 A.D.2d 833 (N.Y. App. Div. 2d Dep't 2008).publishedContrary to petitioner’s assertion, the Hearing Officer properly refused to call certain civilian witnesses because they had no personal knowledge of the incident and, thus, their testimony would have been redundant or irrelevant to the ch…
- Griffith v. Selsky, 53 A.D.3d 884 (N.Y. App. Div. 3d Dep't 2008).publishedEqually unpersuasive is petitioner’s contention that the Hearing Officer erred in continuing the hearing in petitioner’s absence, as the record reflects that “the Hearing Officer took the necessary steps to ascertain the legitimacy of peti…
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 two determinations of respondent which found petitioner guilty of violating certain prison disciplinary rules.
After a correction counselor’s wallet was stolen, petitioner was charged with solicitation, making a false statement, smuggling and stealing property. After a tier III disciplinary hearing, petitioner was found guilty of the charges. As a result of an unrelated incident, petitioner was charged with violating the inmate movement regulations, disturbing the order of the facility, refusing a direct order, possessing an unauthorized item, smuggling and violating the search and frisk procedures. After a second tier III disciplinary hearing, which petitioner did not attend, he was found guilty of the charges. Upon administrative appeal, the charge of making a false statement was dismissed, with no change in the penalty imposed, and, as to the second determination, the penalty imposed was reduced but the determination of guilt was affirmed. This CPLR article 78 proceeding challenging both determinations ensued.
We confirm. The misbehavior report and the hearing testimony of the correction officer who authored it, along with the testimony of a confidential informant considered by the Hearing Officer in camera, provide substantial evidence to support the determination finding petitioner guilty of solicitation, smuggling and stealing property (see Matter of Jackson v McGinnis, 47 AD3d 1100, 1100-1101 [2008]; Matter of Rickson v Leclaire, 46 AD3d 1050, 1050 [2007]). The Hearing Officer properly refused to call witnesses whose testimony would have been either redundant or irrelevant (see Matter of Brown v Selsky, 37 AD3d 891, 891 [2007]; Matter of Rizzuto v Goord, 36 AD3d 1124, 1125 [2007]).
As to the second determination, there is no merit to petitioner’s claim that he was denied his right to attend the hearing. The correction officer assigned to escort petitioner to the hearing testified that petitioner refused to attend, despite being advised of the consequences, and, thus, the Hearing Officer properly continued the hearing in petitioner’s absence (see Matter of Tafari v Selsky, 31 AD3d 1087, 1088 [2006], lv denied 7 NY3d 717 [2006]; Matter of Pagan v Goord, 298 AD2d 735, 736 [2002]);
[*1328] Petitioner’s remaining contentions—many of which were not preserved.—have been reviewed and determined to be without merit.
Mercure, J.P., Spain, Carpinello, Lahtinen and Kavanagh, JJ., concur. Adjudged that the determinations are confirmed, without costs, and petition dismissed.