| Matter of Davis v Goord |
| 2007 NY Slip Op 09633 [46 AD3d 955] |
| December 6, 2007 |
| Appellate Division, Third Department |
| In the Matter of Larry Davis, Petitioner, v Glenn S. Goord, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet of counsel), forrespondent.
Mercure, J.P. Proceeding pursuant to CPLR article 78 (transferred to this Court by order ofthe Supreme Court, entered in Ulster County) to review a determination of respondent whichfound petitioner guilty of violating certain prison disciplinary rules.
Following a violent altercation between inmates and correction officers in the unit wherepetitioner was housed, petitioner was recorded making statements in a telephone call that he hadincited other inmates to get involved in the altercation and that staff had killed one of the inmatesinvolved. Petitioner also requested that he be connected via a three-way call to another inmate'smother, to whom he described the incident. As a result, petitioner was charged in a misbehaviorreport with urging other inmates to participate in action detrimental to the correctional facility,engaging in prohibited call forwarding or third-party calls, and lying. At the conclusion of a tierIII disciplinary hearing, he was found guilty of all charges and given a penalty of three months inthe special housing unit, as well as 14 days prehearing confinement, and three months loss ofprivileges. Respondent modified the determination upon petitioner's appeal by dismissing thecharge of lying due to the improper denial of a requested witness who may have offered relevanttestimony on that charge. Respondent otherwise affirmed the determination and did not reducethe penalty. This CPLR article 78 proceeding ensued.
Initially, we reject petitioner's argument that the determination is not supported by [*2]substantial evidence. Although petitioner was not named as aparticipant by inmate witnesses or in any reports regarding the incident, he pleaded guilty toengaging in prohibited third-party calls or call forwarding, and admitted to stating that heencouraged other inmates to join the altercation. These admissions and the misbehavior reportconstitute substantial evidence to support the determination (see Matter of Carini v Selsky, 19 AD3d 718, 719 [2005]; Matter of Towles v Selsky, 12 AD3d737, 738 [2004], lv denied 4 NY3d 706 [2005]; Matter of Lebron v Goord, 6 AD3d 997, 997-998 [2004]). Whilepetitioner explained that he knew his telephone calls were recorded and purposely stated that heincited the disturbance in order to be transferred to special housing so that he could see the extentof another inmate's injuries for himself, his explanation created a question of credibility for theHearing Officer to resolve (see Matter of Lebron v Goord, 6 AD3d at 998).
Turning to the remaining procedural challenges, we reject petitioner's argument thatannulment is required because he was denied his conditional right to call witnesses pursuant to 7NYCRR 254.5 (a). Petitioner sought to call 16 inmate witnesses and approximately 35 officerswho were involved in the incident. Although, as respondent concedes, the Hearing Officer erredin failing to sufficiently inquire into the reasons surrounding the refusal to testify by four inmatewitnesses (see Matter of Boyd v Selsky, 232 AD2d 929, 929-930 [1996]), all of theproffered testimony was either cumulative or relevant only to the charge of lying that wasdismissed on administrative appeal (see Matter of Lebron v Goord, 6 AD3d at 998;Matter of Bolden v Selsky, 305 AD2d 749, 750 [2003], lv denied 100 NY2d 510[2003]; Matter of Smith v Senkowski, 245 AD2d 909, 910 [1997], lv denied 91NY2d 813 [1998]). Similarly lacking in merit is petitioner's assertion that he received ineffectiveassistance due to his assistant's failure to obtain various documents and identify certainwitnesses. As noted above, the witnesses' testimony was either irrelevant to the sustained chargesor redundant. Moreover, the documentary evidence sought by petitioner either was not in disputeor related to matters outside the scope of the hearing. Accordingly, petitioner has failed todemonstrate that he was prejudiced by any of his assistant's purported failings (see Matter of Colon v Goord, 11 AD3d839, 840 [2004]; Matter of Matos v Goord, 267 AD2d 730, 731 [1999]; Matterof Gonzalez v Mann, 186 AD2d 876, 877 [1992]).
Petitioner's remaining contentions, including his claim that the penalty was harsh andexcessive, are lacking in merit.
Spain, Carpinello, Mugglin and Kane, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.