| Matter of Sutherland v Selsky |
| 2009 NY Slip Op 02866 [61 AD3d 1188] |
| April 16, 2009 |
| Appellate Division, Third Department |
| In the Matter of Patrick Sutherland, Appellant, v Donald Selsky, asDirector of Special Housing and Inmate Disciplinary Programs, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Kathleen M. Treasure of counsel), forrespondents.
Motion for reargument. Upon the papers filed in support of the motion and the papers filedin opposition thereto, it is ordered that the motion is granted, without costs, and thememorandum and order of this Court decided and entered November 6, 2008 (56 AD3d 833[2008]) is vacated and the following decision is substituted therefor:
Appeal from a judgment of the Supreme Court (Devine, J.), entered December 11, 2007 inAlbany County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review a determination of the Commissioner of Correctional Services findingpetitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, was charged in a misbehavior report with facilitating a workstoppage and creating a disturbance. At the ensuing tier III disciplinary hearing, petitioner wasfound guilty of both charges. That determination was affirmed on administrative appeal,prompting petitioner to commence this CPLR article 78 proceeding seeking annulment. SupremeCourt dismissed the petition and this appeal followed.
We affirm. Contrary to petitioner's assertion, the Hearing Officer properly refused to callcertain civilian witnesses because they had no personal knowledge of the incident and, thus, theirtestimony would have been redundant or irrelevant to the charges (see Matter of Morris v Goord, 50AD3d 1327, 1327 [2008]; Matterof Moore v New York State Dept. of Correctional Servs., 50 AD3d 1350, 1351 [2008];Matter of Hannah v Burge, 43AD3d 1234 [2007]; Matter of Leev Goord, 36 AD3d 1176, 1177 [2007]). On this issue, we will not consider the witnessaffidavit attached to petitioner's brief on appeal because that affidavit had not been submitted to[*2]the Commissioner of Correctional Services until after theCommissioner had already administratively affirmed the disciplinary determination in question.Thus, the affidavit did not form a basis for the ultimate determination that is the subject of theinstant CPLR article 78 proceeding. As for petitioner's contention that he was deprived ofadequate employee assistance, any alleged deficiencies were cured by the Hearing Officer duringthe hearing (see Matter of Jenkins vSelsky, 51 AD3d 1239, 1240 [2008]). Petitioner's remaining claims, to the extent notspecifically addressed herein, have been examined and found to be unavailing.
Cardona, P.J., Mercure, Rose, Lahtinen and Kane, JJ., concur. Ordered that the judgment isaffirmed, without costs.