| Matter of Morris v Goord |
| 2008 NY Slip Op 03344 [50 AD3d 1327] |
| April 17, 2008 |
| Appellate Division, Third Department |
| In the Matter of Tony Morris, Petitioner, v Glenn S. Goord, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review two determinations of respondent which foundpetitioner 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 wascharged 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 andfrisk procedures. After a second tier III disciplinary hearing, which petitioner did not attend, hewas found guilty of the charges. Upon administrative appeal, the charge of making a falsestatement was dismissed, with no change in the penalty imposed, and, as to the seconddetermination, the penalty imposed was reduced but the determination of guilt was affirmed. ThisCPLR article 78 proceeding challenging both determinations ensued.
We confirm. The misbehavior report and the hearing testimony of the correction officer whoauthored it, along with the testimony of a confidential informant considered by the HearingOfficer in camera, provide substantial evidence to support the determination finding petitionerguilty of solicitation, smuggling and stealing property (see Matter of Jackson vMcGinnis, 47 [*2]AD3d 1100, 1100-1101 [2008]; Matter of Rickson v Leclaire, 46 AD3d1050, 1050 [2007]). The Hearing Officer properly refused to call witnesses whose testimonywould have been either redundant or irrelevant (see Matter of Brown v Selsky, 37 AD3d 891, 891 [2007]; Matter of Rizzuto v Goord, 36 AD3d1124, 1125 [2007]).
As to the second determination, there is no merit to petitioner's claim that he was denied hisright to attend the hearing. The correction officer assigned to escort petitioner to the hearingtestified 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 AD3d1087, 1088 [2006], lv denied 7 NY3d 717 [2006]; Matter of Pagan v Goord,298 AD2d 735, 736 [2002]).
Petitioner's remaining contentions—many of which were not preserved—havebeen reviewed and determined to be without merit.
Mercure, J.P., Spain, Carpinello, Lahtinen and Kavanagh, JJ., concur. Adjudged that thedeterminations are confirmed, without costs, and petition dismissed.