| Matter of McFadden v Venettozzi |
| 2009 NY Slip Op 06473 [65 AD3d 1401] |
| September 17, 2009 |
| Appellate Division, Third Department |
| In the Matter of Reginald McFadden, Appellant, v D. Venettozzi,as Acting Director of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Julie M. Sheridan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Cahill, J.), entered May 7, 2008 in AlbanyCounty, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, toreview a determination of the Commissioner of Correctional Services finding petitioner guilty ofviolating certain prison disciplinary rules.
Following an incident during which petitioner, an inmate, yelled at a correction officer andthreatened to "have [his] brother come up here and kill [the officer's] whole family," he receiveda misbehavior report which charged him with threats and harassment of an employee. Followinga tier III disciplinary hearing, petitioner was found guilty and the determination was upheld onadministrative appeal. Petitioner thereafter commenced this proceeding pursuant to CPLR article78. Supreme Court dismissed petitioner's application and he now appeals.
We affirm. We first reject petitioner's claim that the Hearing Officer failed to make ameaningful effort to determine why certain inmate witnesses refused to testify. Where an inmatewitness has not previously agreed to testify and the reason for his or her refusal appears in therecord, an inmate will not be said to have been deprived of the right to present witnesses (see Matter of Hill v Selsky, 19 AD3d64, 66-67 [2005]; Matter of Moore v Senkowski, 13 AD3d [*2]683, 684 [2004]). Here, there is nothing in the record to indicatethat the inmates in question ever agreed to testify, and petitioner acknowledged during thehearing that he had been informed by his employee assistant that the witnesses refused becausethey had no knowledge of the incident. Similarly, the Hearing Officer did not err in denying therequest to call correction officers Chase and Barber, inasmuch as petitioner admitted during thehearing that neither officer was present during the incident and, thus, their testimony would havebeen irrelevant (see Matter ofSutherland v Selsky, 61 AD3d 1188, 1189 [2009]; Matter of Scott v Fischer, 57 AD3d 1035, 1036 [2008], lvdenied 12 NY3d 705 [2009]). Moreover, the failure to provide a written explanation for suchrefusal does not warrant annulment because the reason for the denial was evident from the record(see Matter of Perretti v Fischer, 58 AD3d 999, 1002 [2009], lv denied 12 NY3d709 [2009]).
To the extent that petitioner claims that the misbehavior report was given to him inretaliation for an earlier grievance he had filed against the author of the report, we find thiscreated a credibility issue to be resolved by the Hearing Officer (see Matter of Odom vSelsky, 58 AD3d 1060, 1061 [2009]; Matter of Zaire v Artus, 49 AD3d 945, 946 [2008]). Lastly, wefind that, although the final stages of the hearing did not appear in the transcript, the materialomitted does not preclude meaningful review (see Matter of McIver v Goord, 37 AD3d 943, 944 [2007];Matter of Campbell v Stinson, 269 AD2d 631, 631 [2000], appeal dismissed 95NY2d 848 [2000]) particularly here, where petitioner admitted during the hearing both that hewas yelling at the officer and that he made a threat.
Petitioner's remaining contentions have been examined and found to be lacking in merit.
Mercure, J.P., Spain, Lahtinen, Kavanagh and McCarthy, JJ., concur. Ordered that thejudgment is affirmed, without costs.