| Matter of Lamage v Selsky |
| 2008 NY Slip Op 00397 [47 AD3d 1144] |
| January 24, 2008 |
| Appellate Division, Third Department |
| In the Matter of Edwin Lamage, Petitioner, v Donald Selsky, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Peters, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Albany County) to review three determinations of the Commissionerof Correctional Services which found petitioner guilty of violating certain prison disciplinaryrules.
Petitioner was charged in misbehavior reports dated June 19, 2006, June 20, 2006 andSeptember 14, 2006 with violations of prison disciplinary rules. Petitioner challenges thedeterminations finding him guilty. We confirm.
At the hearing concerning the June 19, 2006 misbehavior report, petitioner pleaded guilty tothe charges. The Hearing Officer adjourned the hearing over petitioner's objection to permitpetitioner to reconsider both his plea and his decision not to call witnesses. When the hearingwas reconvened, petitioner indicated that he had nothing other than his plea and requesteddismissal because the Hearing Officer had not rendered a determination withing 24 hours of hisplea. Finding that he had not concluded the hearing when he adjourned the hearing, the HearingOfficer provided petitioner with the opportunity to make a defense which was declined, closedthe proof and rendered a disposition. Contrary to petitioner's contention, the [*2]adjournment was proper and a timely determination was rendered.
At the hearing concerning the June 20, 2006 misbehavior report, which charged thatpetitioner had failed to submit to a urine sample, petitioner stated that he had not spoken to thecorrection officer and was unaware of the request. The correction officer testified to repeatedrequests and petitioner's nonreaction to the request. As petitioner raised his mental status inmitigation, confidential testimony of petitioner's mental state was taken from a mental healthprofessional. Petitioner's request to be present for such testimony was denied and the acceptedconfidential practice concerning mental health issues was explained to petitioner. Petitionercontends that he was improperly denied his mental health witness and that the determination isnot supported by substantial evidence.
The Hearing Officer did not commit error by taking confidential mental health assessmenttestimony as to petitioner's mental state (see Matter of Farrell v Selsky, 32 AD3d 1103, 1104 [2006];Matter of Ryan v Pico, 227 AD2d 806, 807 [1996]). The misbehavior report, togetherwith the testimony of the correction officer who sought the test, provide substantial evidencesupporting the determination of guilt (see Matter of Vizcaino v Selsky, 26 AD3d 574 [2006], lvdenied 7 NY3d 708 [2006]). Petitioner's exculpatory statements as to his nonrecollectionpresented a credibility issue for the Hearing Officer to resolve (see Matter of Miller v NewYork State Dept. of Correctional Servs., 295 AD2d 714, 714-715 [2002]).
At the hearing concerning the September 14, 2006 misbehavior report which charged thatpetitioner had solicited sex and an unauthorized exchange, petitioner contends that he establishedthat the acts subject to the report did not take place on the date marked in the incident date boxbecause the other inmate involved was housed elsewhere on that date. As a result, petitionercontends that the determination is not supported by substantial evidence. A plain reading of themisbehavior report reveals the date to be the date of the investigation. The issue of the date wasexplored at the hearing. The use of the investigation date was proper (see Matter of Profitt v Goord, 34 AD3d1136, 1137 [2006]). The report gave petitioner sufficient notice that his acts consisted of anexchange of a series of letters with and purchases of commissary items for another inmate over aperiod of time. The misbehavior report and the testimony of the investigating correction officerto whom petitioner made incriminating admissions provide substantial evidence supporting thedetermination of guilt (see Matter of Smith v Goord, 255 AD2d 1007 [1998]).
Mercure, J.P., Spain, Lahtinen and Malone, JJ., concur. Adjudged that the determinations areconfirmed, without costs, and petition dismissed.