| Matter of Fludd v New York State Dept. of CorrectionalServs. |
| 2009 NY Slip Op 03826 [62 AD3d 1149] |
| May 14, 2009 |
| Appellate Division, Third Department |
| In the Matter of Jovan Fludd, Petitioner, v New York StateDepartment of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Kathleen M. Treasure of counsel), forrespondent.
Garry, 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 respondent whichdirected that petitioner be placed into administrative segregation.
In January 2006, petitioner was convicted in New York County of seven counts of forgerybased on false liens that he filed, while incarcerated, under UCC article 1 against prosecutors andothers who had participated in his previous prosecution. His sentence, imposed in March 2006,included certain restrictions on his mailing privileges. In subsequent disciplinary proceedings,petitioner was found guilty of two incidents of "kiting," or circumventing mailing restrictions byusing another inmate's identification. A subsequent search of his cell revealed completed UCC-1financing statements targeting correctional facility staff who had participated in the disciplinaryproceedings. Shortly thereafter, respondent issued an administrative segregationrecommendation based on the kiting incidents. The recommendation did not mention the UCC-1forms. In September 2006, the Hearing Officer denied the recommendation for administrativesegregation, finding that the kiting incidents did not pose a threat to the safety and security of thefacility and that, although the false UCC-1 financing statements "may be found to threaten thefinancial security of the staff member involved," they could not be considered because, as theHearing Officer erroneously stated, they were not found until after the recommendation wasmade. [*2]Respondent promptly applied to the sentencing courtfor an order holding petitioner in restrictive confinement, representing that it could not otherwiseprevent him from making future false filings. The sentencing court issued a supplemental orderdirecting petitioner's placement in the special housing unit (hereinafter SHU).
Petitioner initiated a CPLR article 78 proceeding which, in March 2008, resulted in adecision of the Appellate Division, First Department, overturning the supplemental order anddirecting petitioner's release from the SHU (Matter of Fludd v Goldberg, 51 AD3d 153 [2008], appealwithdrawn 10 NY3d 858 [2008]). Respondent did not release him, but instead immediatelyissued a new administrative segregation recommendation against petitioner based upon hispossession of the UCC-1 forms found in his cell in September 2006, his prior convictions forfalse UCC-1 filings, and the kiting violations. The recommendation was affirmed uponadministrative appeal. Petitioner now seeks to have the determination annulled and to be releasedfrom the SHU.
The determination placing petitioner in administrative segregation was not, as he contends,based solely on his 2006 possession of the false UCC-1 forms targeting correctional staff. Theevidence adduced at the administrative hearing, which included petitioner's previous convictionsfor false UCC-1 filings, the prior kiting incidents and, in particular, an additional kiting incidentwhich took place in 2007 during petitioner's confinement in the SHU, was sufficient to permitthe rational inference that petitioner intended to file the false UCC-1 forms and to continue hisefforts to circumvent correspondence restrictions. It therefore constituted the requisite substantialevidence that his "presence in [the] general population would pose a threat to the safety andsecurity of the facility" (7 NYCRR 301.4 [b]; see Matter of Dumpson v Fischer, 51 AD3d 1161, 1162 [2008]; Matter of Ryan v Selsky, 49 AD3d926, 926 [2008], lv denied 10 NY3d 716 [2008]). While petitioner did not attemptany false UCC-1 filings after he was confined in the SHU, the " 'denial of the opportunity tocommit a crime cannot be . . . taken as probative evidence of rehabilitation' " (Matter of Blake v Selsky, 10 AD3d774, 776 [2004], quoting Matter of Smith v Goord, 250 AD2d 946, 947 [1998],lv denied 92 NY2d 810 [1998]; accord Matter of Dumpson v Fischer, 51 AD3dat 1162).
The decision of the First Department does not, as petitioner contends, mandate his releasefrom administrative segregation. The Court's decision was narrowly directed at the sentencingcourt's lack of authority to issue a postjudgment order controlling the conditions of petitioner'sconfinement. It did not address respondent's independent administrative authority to placepetitioner in the SHU in order to protect the safety and security of the facility (see Matter ofFludd v Goldberg, 51 AD3d at 159; 7 NYCRR 301.4 [b]). Respondent's assessment of thelikelihood that petitioner would engage in future misbehavior was necessary to the exercise of itsadministrative authority and was not, as he contends, an improper attempt to punish him forfuture misdeeds. "[T]he judgment of prison officials in [the] context [of assessing a threat toinstitutional security], like that of those making parole decisions, turns largely on purelysubjective evaluations and on predictions of future behavior" (Matter of Smith v Goord,250 AD2d at 947 [internal quotation marks and citations omitted]).
Turning to petitioner's procedural claims, petitioner has not shown that any prejudiceresulted from the 18-month delay between the discovery of the UCC-1 forms in his cell and theadministrative segregation recommendation (see Matter of Di Rose v New York State Dept.of Correctional Servs., 276 AD2d 842, 843 [2000], lv dismissed 96 NY2d 850[2001]). The delay was not caused by any subterfuge or negligence on respondent's part, butoccurred because no [*3]need existed to assess whether petitionerimposed a threat to the facility's security while he was still subject to the sentencing court'ssupplemental order. Although no misbehavior report was issued based on petitioner's possessionof the UCC-1 forms, such a report is not a prerequisite to an administrative segregationrecommendation because the proceedings are not disciplinary in nature (see Matter of Blakev Coughlin, 189 AD2d 1016, 1017 [1993]).
The administrative segregation recommendation itself was sufficiently detailed to satisfy dueprocess standards by providing petitioner with notice of the reasons for the recommendation andan opportunity to prepare a defense (seeMatter of Burr v Goord, 17 AD3d 751, 752 [2005]). Although the UCC-1 forms werenot served on petitioner with the recommendation, the Hearing Officer permitted him to examinethem during the hearing by placing them against the glass that separated him from petitioner and,upon petitioner's protests, determined that the glass was not too dirty to permit the inspection.
Petitioner contends that he did not receive adequate employee assistance in preparing for hishearing, in part because his assistant did not report to him before the hearing with the results ofhis efforts on petitioner's behalf (see 7 NYCRR 251-4.2). However, upon discoveringthis failure, the Hearing Officer adjourned the hearing to permit petitioner to examine theassistant's report, and petitioner confirmed that he was provided adequate time to do so. Anyfailure on the assistant's part to obtain documents that petitioner requested in order to establish adouble jeopardy defense was cured by the Hearing Officer's inclusion in the record of the FirstDepartment's Fludd decision and other documents pertaining to the 2006 administrativesegregation proceeding. Petitioner has shown no prejudice resulting from his assistant's allegedfailures (see Matter of Burgess vSelsky, 50 AD3d 1347, 1348 [2008]).
Petitioner has not met his burden of establishing that he was denied a fair hearing (seeMatter of McCoy v Leonardo, 175 AD2d 358, 359 [1991]). The Hearing Officer permittedpetitioner to call two witnesses that he requested during the hearing, and the witness testimonyhe had previously requested through his assistant was properly denied as immaterial orredundant to the proceeding (see 7 NYCRR 254.5 [a]). The Hearing Officer'sexpressions of frustration with petitioner during the hearing do not establish that he did notreceive a fair hearing or that the outcome flowed from bias or prejudgment (see Matter of Miller v Goord, 2 AD3d928, 930 [2003]; Matter of Joyce v Goord, 246 AD2d 926, 927 [1998]).
Finally, this Court's determination that petitioner is not entitled to an order annullingrespondent's April 1, 2008 determination does not foreclose petitioner from any remedy, as hiscontinued confinement in the SHU is subject to a mandated review and redetermination every 60days (see 7 NYCRR 301.4 [d]).
Peters, J.P., Rose, Lahtinen and Malone Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.