| Matter of Joseph v Fischer |
| 2009 NY Slip Op 07909 [67 AD3d 1103] |
| November 5, 2009 |
| Appellate Division, Third Department |
| In the Matter of Ricardo Joseph, 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 Broome County) to review a determination of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
As petitioner was exiting his prison cell, he turned violently and struck a correction officer inthe face with his clenched fist. Officers immediately subdued petitioner, but he continued tostruggle despite their repeated orders to cease. As a result, petitioner received a misbehaviorreport charging him with assaulting staff, interference, violent conduct and refusing a directorder. Petitioner was found guilty on all counts after a tier III disciplinary hearing, and anunsuccessful administrative appeal followed. Petitioner, thereafter, commenced this CPLRarticle 78 proceeding.
We confirm. The misbehavior report, along with the supporting documentation and hearingtestimony of the correction officers involved in the altercation, provide substantial evidence tosupport the determination (see Matter ofGeraci v Fischer, 63 AD3d 1467, 1468 [2009]; Matter of Smith v Dubray, 58AD3d 968, 968-969 [2009]). The Hearing Officer did not err in refusing petitioner's request tocall the supervising sergeant as a witness, inasmuch as the unusual incident report made clearthat he was not present at the time of the incident and, thus, [*2]had no personal knowledge of the facts (see Matter of Gimenez v Artus, 63AD3d 1461, 1462 [2009]; Matterof Sutherland v Selsky, 61 AD3d 1188, 1189 [2009]).
Petitioner's contention that the Hearing Officer failed to ascertain the reasons for severalinmates' refusal to testify is not preserved for our review, inasmuch as he failed to raise thatobjection during the hearing (see Matterof McCollum v Fischer, 61 AD3d 1194, 1194 [2009], lv denied 13 NY3d 703[2009]; Matter of Williams vGoord, 37 AD3d 948, 948 [2007], lv denied 8 NY3d 1021 [2007]). Finally, weagree with petitioner that the Hearing Officer should not have denied disclosure of the injuredcorrection officer's medical records absent a showing that institutional safety would have beenjeopardized (see Matter of McLean vFischer, 63 AD3d 1468, 1469-1470 [2009]; Matter of Mack v Goord, 49 AD3d 1045, 1046 [2008], lvdenied 10 NY3d 715 [2008]). However, we find the error to be harmless considering theoverwhelming evidence against petitioner (see Matter of McLean v Fischer, 63 AD3d at1470; Matter of Mack v Goord, 49 AD3d at 1046). We have examined petitioner'sremaining contentions and find them to be lacking in merit.
Cardona, P.J., Peters, Lahtinen, Malone Jr. and Stein, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.