| Matter of Russell v Selsky |
| 2008 NY Slip Op 03537 [50 AD3d 1412] |
| April 24, 2008 |
| Appellate Division, Third Department |
| In the Matter of Jacob Russell, 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.
Lahtinen, 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 a prison disciplinary rule.
Petitioner was charged in a misbehavior report with committing an unhygienicact—namely, spitting in a water cooler from which correction officers obtained theirdrinking water. Following a tier III disciplinary hearing, petitioner was found guilty and a penaltyof five months in the special housing unit and a corresponding loss of privileges was imposed.That determination was affirmed upon administrative review, prompting petitioner to commencethis proceeding pursuant to CPLR article 78.
We confirm. The misbehavior report, together with the testimony of the correction officerswho witnessed the incident, provide substantial evidence of petitioner's guilt (see Matter of Johnson v Goord, 40AD3d 1335, 1336 [2007]). Petitioner's denial of the incident, and the testimony of a fellowinmate as to petitioner's whereabouts at the time, presented a credibility issue for the HearingOfficer to resolve (see Matter of Parker v Goord, 247 AD2d 694, 695[*2][1998]).
Nor are we persuaded that petitioner was denied the right to present relevant evidence.Petitioner sought the testimony of a particular correction officer to establish that he was notkeeplocked at the time indicated on the misbehavior report, thus, in petitioner's view, castingdoubt upon the overall veracity of the report. The Hearing Officer denied the request, noting thatwhether petitioner was confined following the incident and/or what time that occurred wasirrelevant to whether he committed an unhygienic act. Petitioner raised no objection in thisregard, nor did he subsequently renew his request for this witness. Under such circumstances,petitioner has failed to preserve this issue for our review (see Matter of Towles v Selsky, 12 AD3d 737, 738 [2004], lvdenied 4 NY3d 706 [2005]; Matterof Blackwell v Goord, 5 AD3d 883, 885 [2004], lv denied 2 NY3d 708 [2004]).
Petitioner also sought the production of the "go around" lists for his company, which, hecontends, would have shown that he was not present in D block at the time of the incident and,hence, could not have committed the unhygienic act alleged. The record reflects, however, thatsuch lists are maintained for only 72 hours and, therefore, by the time the hearingcommenced—five days after the misbehavior report was written—the lists no longerexisted. As there is no indication that the requested records were destroyed in bad faith (see Matter of Morgan v Goord, 10AD3d 792, 793 [2004]), the Hearing Officer cannot be faulted for failing to producedocuments that did not exist (see Matter of Ciotoli v Goord, 256 AD2d 1192, 1193[1998]; Matter of Parker v Goord, 247 AD2d at 695).
Finally, petitioner asserts that he was denied adequate employee assistance. Althoughpetitioner indeed raised this point at the start of the disciplinary hearing, the hearing wasadjourned to respond to petitioner's various requests and, ultimately, petitioner indicated that hewas satisfied with the assistance provided (see Matter of Blackwell v Goord, 5 AD3d at884-885). Moreover, based upon our review of the record as a whole, we find no merit topetitioner's claim that he was prejudiced by any alleged deficiencies that may have existed (see Matter of Abdullah v Goord, 36AD3d 978, 979 [2007]; Matter ofMiller v Goord, 1 AD3d 647, 648-649 [2003]). Accordingly, the underlyingdetermination is confirmed.
Cardona, P.J., Mercure, Spain and Kavanagh, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.