| Matter of West v Bezio |
| 2009 NY Slip Op 05226 [63 AD3d 1464] |
| June 25, 2009 |
| Appellate Division, Third Department |
| In the Matter of Percy D. West, Petitioner, v Norman R. Bezio, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of the Commissioner of CorrectionalServices which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner became involved in a physical altercation with another inmate in the presence ofapproximately 17 inmates. After petitioner ignored directives to stop fighting, correction officersused force to control him, at which time he was found to be in possession of a makeshift weapon.As a result of this incident, petitioner was charged in a misbehavior report with refusing a directorder, creating a disturbance, possessing a weapon, assaulting another inmate and fighting.Petitioner was found guilty of all charges following a rehearing of a prior tier III disciplinaryhearing. After the determination was affirmed on administrative appeal, petitioner commencedthis CPLR article 78 proceeding.[FN*][*2]
Initially, petitioner contends that he was improperlydenied the right to have the other inmate involved in the altercation testify at the hearing. Therecord discloses that although this inmate initially agreed to testify, he later refused, but did notprovide a reason to the correction officer who attempted to secure his testimony. As aconsequence, the Hearing Officer personally spoke with the inmate on the telephone andascertained that the inmate did not want to testify because he feared for his safety. Nothing morewas required to establish the legitimacy of the inmate's refusal under the circumstances presentedand petitioner was not deprived of his right to call this witness (see Matter of Hill v Selsky, 19 AD3d64, 67 [2005]; see also Matter ofAlvarez v Goord, 30 AD3d 118, 121 [2006]).
Similarly, petitioner asserts that he was improperly denied the right to have the 17 inmateswho were present during the altercation testify at the hearing. The identity of all of theseinmates, however, was unknown because the original master list containing their names was nolonger in existence. It was not incumbent upon either the Hearing Officer or the employeeassistant to produce a document that was unavailable (see Matter of Chavis v Goord, 58AD3d 954, 955 [2009]). To the extent petitioner challenges the lack of testimony from identifiedinmates who initially agreed to testify, the record establishes that the Hearing Officer undertookdiligent efforts to obtain such testimony. In any event, after petitioner declined to participate inthe hearing, those witnesses stated on the record that they did not wish to testify withoutpetitioner being present. In view of this, and inasmuch as we find no other procedural violations,we decline to disturb the determination of guilt.
Cardona, P.J., Mercure, Rose, Lahtinen and Kavanagh, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.
Footnote *: Although the proceeding shouldnot have been transferred inasmuch as the petition does not raise the question of substantialevidence, we nevertheless retain jurisdiction and address the merits in the interest of judicialeconomy (see Matter of Riley v Fischer, 58 AD3d 976 [2009]).