| Matter of Parkinson v Selsky |
| 2008 NY Slip Op 02057 [49 AD3d 985] |
| March 13, 2008 |
| Appellate Division, Third Department |
| In the Matter of David Parkinson, Petitioner, v Donald Selsky, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Kathleen M. Treasure of counsel), forrespondent.
Kane, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Albany County) to review a determination of the Commissioner ofCorrectional Services which found petitioner guilty of violating certain prison disciplinary rules.
While petitioner, a prison inmate, was in a holding pen awaiting transfer to another facility,he was involved in an incident where he was disruptive and punched two correction officers.After a tier III disciplinary hearing, he was found guilty of violating the prison disciplinary rulesprohibiting assault on staff and violent conduct. Respondent upheld the determination butreduced the penalty. Petitioner commenced this proceeding seeking to annul the determination.Finding none of his arguments persuasive, we confirm.
The misbehavior report, unusual incident reports and the testimony by numerous correctionofficers provide substantial evidence to support the determination that petitioner struck twocorrection officers, attempted to strike one a second time and wrestled with them while resistingtheir control (see Matter of Williams vGoord, 36 AD3d 1033, 1033 [2007]). The [*2]testimonyfrom petitioner and two inmate witnesses, stating that the correction officers attacked petitionerand another inmate for no reason, created an issue of credibility for the Hearing Officer to resolve(see Matter of Barnes v Goord, 279 AD2d 685, 685 [2001]).
The Hearing Officer reasonably refused to call or recall certain witnesses. Although only twoinmates besides petitioner testified, 12 more were contacted and refused to testify, as evidencedby their signed witness refusal forms (see Matter of Moore v Senkowski, 13 AD3d 683, 684 [2004]).Petitioner failed to indicate any relevance or new information that could be provided when herequested the testimony of every correction officer assigned to the shift and each of the inmatesin the holding pen. The information he sought by recalling two officers was irrelevant to theultimate determination and only sought to impeach them on minor details (see Matter of Picav Selsky, 274 AD2d 712, 713 [2000]). The Hearing Officer appropriately denied thetestimony of medical personnel who treated petitioner after the incident, as such testimony wasirrelevant to the determination on the charged misconduct (see Matter of Thomas vGoord, 293 AD2d 787, 788 [2002], lv denied 98 NY2d 613 [2002]). Having heard orsought the testimony from nearly 30 witnesses, the Hearing Officer reasonably limited furthertestimony based on redundancy (see Matter of Williams v Goord, 36 AD3d at 1033;Matter of Gill v Selsky, 240 AD2d 831, 831 [1997]). It was not an abuse of his discretionto take the testimony of an inmate outside petitioner's presence to preserve institutional safety,considering that the two were charged with assaulting staff in the same incident and a correctionofficer saw the two engaged in a confrontational situation (see 7 NYCRR 254.5 [b]). TheHearing Officer obtained questions from petitioner before questioning the inmate and played thetape of that inmate's testimony for petitioner (see id.).
Although a portion of the hearing transcript is missing because the Hearing Officerinadvertently recorded over some testimony, the record is sufficient for appellate review. Theportion that is missing contained part of petitioner's explanation of his version of the incident, buthe provided this information again later in the hearing. Under the circumstances, the transcript isadequate to permit meaningful review of the hearing (see Matter of Fama v Mann, 196AD2d 919, 920 [1993], lv denied 82 NY2d 662 [1993]; compare Matter ofMuhammad v Selsky, 279 AD2d 742, 743 [2001]).
Despite the lack of adequate assistance prior to the hearing, the Hearing Officer remedied thesituation by providing petitioner all of the documents he requested, save those that did not existor were irrelevant to the charged misbehavior, and additional time was granted to permitpetitioner to review those documents (see Matter of Lebron v McGinnis, 26 AD3d 658, 658-659 [2006],lv denied 7 NY3d 704 [2006]; see also Matter of Hynes v Goord, 30 AD3d 652, 653 [2006];Matter of Parker v Laundree, 234 AD2d 727, 728 [1996]). Thus, he was not prejudicedby the original inadequacy (see Matterof Moss v Goord, 36 AD3d 977, 978 [2007]). The record does not disclose any bias bythe Hearing Officer, nor that the determination flowed from anything other than evidence ofpetitioner's guilt (see Matter of De LaCruz v Selsky, 36 AD3d 907, 907 [2007]; Matter of Tumminia v Goord, 294AD2d 727, 728 [2002], lv denied 99 NY2d 502 [2002]; Matter of Rossi vPortuondo, 277 AD2d 615, 616 [2000], lv denied 96 NY2d 706 [2001]). Petitioner'sremaining contentions have been reviewed and found lacking in merit.
Cardona, P.J., Carpinello, Lahtinen and Kavanagh, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.