| Matter of Tulloch v Fischer |
| 2011 NY Slip Op 09232 [90 AD3d 1370] |
| December 22, 2011 |
| Appellate Division, Third Department |
| In the Matter of Albert Tulloch, Appellant, v Brian Fischer,as Commissioner of Corrections and Community Supervision,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Ceresia Jr., J.), entered March 18, 2011 inAlbany County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review two determinations of respondent finding petitioner guilty of violatingcertain prison disciplinary rules.
Following an incident in the mess hall during which he apparently slashed a fellow inmate inthe neck and leg with a butcher knife, petitioner was charged in a misbehavior report with assaultand possession of a weapon. Following a tier III disciplinary hearing, petitioner was found guiltyof both charges and that determination was affirmed on administrative appeal.[FN*]Petitioner then commenced this CPLR article 78 proceeding to challenge the determination, andSupreme Court dismissed the application without a hearing. This appeal ensued.
We affirm. We first reject petitioner's contention that the determination must be [*2]annulled because he received inadequate prehearing assistance.While he claims that his assistant failed to interview potential witnesses and report back, we notethat the inmate assistant form listed no potential witnesses and was signed by petitionerindicating his satisfaction with his assistance. In any event, the Hearing Officer attempted toobtain the testimony of two witnesses named by petitioner at the hearing as well as seven otherinmates who were present at the time of the incident, thereby curing any deficiencies that mayhave been present in the prehearing assistance, and petitioner has demonstrated no prejudice (see Matter of Washington v Fischer, 85AD3d 1484, 1484-1485 [2011]; Matter of Mayo v Fischer, 82 AD3d 1421, 1422 [2011], lvdenied 17 NY3d 702 [2011]).
We also find unpersuasive petitioner's contention that he was denied the right to callwitnesses. There is no indication that the requested inmates, including the victim, had everagreed to testify and, therefore, the witness refusal forms indicating the reason for the refusal andsigned by each inmate and an employee witness adequately protected petitioner's right (see Matter of Tafari v Fischer, 78AD3d 1405, 1406 [2010], lv denied 16 NY3d 704 [2011]; Matter of Hill v Selsky, 19 AD3d64, 66-67 [2005]). Furthermore, petitioner had no right to cross-examine the confidentialwitnesses (see Matter of Barton v NewYork State Dept. of Correctional Servs., 81 AD3d 1029, 1030 [2011]; Matter of Shabazz v Artus, 72 AD3d1299, 1300 [2010]). Finally, there was no requirement that the author of the misbehaviorreport testify absent a request from petitioner (see Matter of Hernandez v Selsky, 62 AD3d 1177, 1178 [2009];Matter of Donato v Goord, 278 AD2d 641, 641 [2000], lv denied 96 NY2d 711[2001]).
Petitioner's remaining contentions have been considered and found to be either unpreservedor lacking in merit.
Peters, J.P., Spain, Lahtinen, Kavanagh and Egan Jr., JJ., concur. Ordered that the judgmentis affirmed, without costs. [Prior Case History: 2011 NY Slip Op 30622(U).]
Footnote *: The disciplinary hearing anddetermination encompassed charges stemming from a second misbehavior report which are not atissue here.