| Matter of Holmes v Fischer |
| 2009 NY Slip Op 07175 [66 AD3d 1093] |
| October 8, 2009 |
| Appellate Division, Third Department |
| In the Matter of Daniel Holmes, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Kavanagh, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order ofthe Supreme Court, entered in Albany County) to review a determination of respondent whichfound petitioner guilty of violating a prison disciplinary rule.
Petitioner, a prison inmate, was charged in a misbehavior report with possessing a weaponafter a frisk of his cell revealed a plastic shank secreted in a sock found in a bag between thetoilet and a wall. Petitioner was found guilty following a tier III disciplinary hearing and, after anunsuccessful administrative appeal, he commenced this CPLR article 78 proceeding seekingannulment of that determination.
Initially, we find that the determination that petitioner was guilty of possessing a weapon issupported by substantial evidence by virtue of the detailed misbehavior report, the corroboratingtestimony of the officer who conducted the cell frisk and the weapon recovery report andaccompanying photograph (see Matterof Cruz v Fischer, 57 AD3d 1055, 1055 [2008]; Matter of Jackson v Dubray, 56 AD3d 919, 919 [2008]; Matter of Fews v Goord, 54 AD3d1073, 1074 [2008]). Additionally, we reject petitioner's contention that his fundamental dueprocess rights were violated because he did not receive a copy of the tape recording of his [*2]tier III disciplinary hearing. Inmates do not possess a constitutionalright to such recordings and, here, where petitioner was provided with a statement of theevidence that was relied upon and the reasons for the action taken, he was afforded the necessaryinformation to challenge the determination (see Matter of Turner v Newton, 272 AD2d688, 689 [2000]; Matter of Carter v Goord, 271 AD2d 729, 730 [2000]; Matter ofRivera v Smith, 137 AD2d 281, 283-284 [1988]). In any event, the record demonstrates thatpetitioner's requests for the tape recording were directed toward the Auburn Correctional Facilityin Cayuga County and he was timely notified that to obtain a copy of the tape recording, heneeded to contact the Attica Correctional Facility in Wyoming County, where the hearing washeld.
To the extent that petitioner challenges the confidential information that led to the search ofhis cell, we note that the Hearing Officer was not required to determine its veracity inasmuch asit was not relied upon nor relevant to the determination of petitioner's guilt (see Matter of Kearney v Fischer, 51AD3d 1185, 1186 [2008]; Matter of Davis v Selsky, 270 AD2d 548, 548 [2000]).Likewise, we find no merit in petitioner's claim that he was prejudiced by deficient employeeassistance because the assistant failed to interview requested inmates. Petitioner was given theopportunity to call the inmates as witnesses at the hearing, but declined to do so (see e.g. Matter of Tirado v Goord, 50AD3d 1332, 1333 [2008]; Matterof Davila v Selsky, 29 AD3d 1247, 1248 [2006]; Matter of Alvarez v Goord, 17 AD3d 945, 946 [2005]). Finally,petitioner's contention that the weapon was planted in his cell in retaliation for complaints he hadlodged against two correction officers raised a credibility issue for the Hearing Officer to resolve(see Matter of Washington vNapoli, 61 AD3d 1243, 1243 [2009]; Matter of Jackson v Fischer, 59 AD3d 820, 820 [2009]).Petitioner's remaining claims have been examined and found to be without merit.
Cardona, P.J., Mercure, Spain and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.