| Matter of McLean v Fischer |
| 2009 NY Slip Op 05230 [63 AD3d 1468] |
| June 25, 2009 |
| Appellate Division, Third Department |
| In the Matter of Dennis McLean, Petitioner, v Brian Fischer, 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 a determination of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
Petitioner was frisked by correction officers during a routine visit to receive medication andwas found to have a razor blade melted into a toothbrush hidden in his waistband. After itsdiscovery, petitioner repeatedly struck the officer who frisked him, and assaulted several otherofficers during the ensuing struggle to subdue him. Petitioner was subsequently charged in amisbehavior report with assaulting staff members, possession of a weapon, refusing a directorder, violent conduct and noncompliance with frisk procedures. After a tier III disciplinaryhearing, petitioner was found guilty of all charges except noncompliance with frisk procedures,and an unsuccessful administrative appeal followed. Petitioner then commenced this CPLRarticle 78 proceeding challenging the determination of his guilt on both substantive andprocedural grounds and we now confirm.
Initially, we find that the misbehavior report, together with the extensive testimony anddocumentation, provide substantial evidence to support the determination of petitioner's guilt (see Matter of Jackson v Dubray, 56AD3d 919 [2008]; Matter of Perezv Dubray, 55 AD3d 1119 [2008]). To the extent that petitioner claims that thedisciplinary charges were fabricated in retaliation for his cooperation with an investigation intothe abuse of another inmate, that raised a [*2]question ofcredibility to be resolved by the Hearing Officer (see Matter of Jackson v Fischer, 59 AD3d 820, 820 [2009];Matter of Perez v Dubray, 55 AD3d at 1119).
Turning to petitioner's procedural claims, we find that he was not denied his right to callwitnesses. Contrary to petitioner's contention, he was allowed to call a witness from theInspector General's office, who testified that he did not have any information other than thatpetitioner had filed a grievance in a matter concerning another inmate. With regard to the requestto call George Morales, the inmate who was the subject of petitioner's prior grievance and whopurportedly had knowledge about threats made against petitioner, it was appropriately deniedinasmuch as Morales had no knowledge of the events underlying the misbehavior report and,therefore, was unable to provide relevant testimony (see Matter of Brown v Goord, 11 AD3d 857, 858 [2004];Matter of Orr v Selsky, 290 AD2d 768, 769 [2002]). Additionally, petitioner's request tocall Correction Officer Feeney was properly denied, inasmuch as it would have been redundantto the testimony of four other witnesses, whose testimony the Hearing Officer credited (see Matter of Scott v Fischer, 57AD3d 1035, 1036 [2008], lv denied 12 NY3d 705 [2009]). Furthermore, the failureto provide petitioner with a written explanation for the denial does not require annulmentbecause the record expressly reveals the reason (see Matter of Miller v Costello, 304AD2d 916, 917 [2003]; Matter of Jones v Goord, 274 AD2d 902, 903 [2000]).
Finally, we find that absent some indication that disclosure of the medical records of theinjured correction officers would jeopardize institutional safety, their denial was error (see Matter of Mack v Goord, 49 AD3d1045, 1046 [2008], lv denied 10 NY3d 715 [2008]). However, we also find thaterror to be harmless in light of the overwhelming evidence against petitioner (see id.).Petitioner's remaining contentions have been examined and found to be either unpreserved orwithout merit.
Cardona, P.J., Mercure, Rose, Kavanagh and Stein, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.