| Matter of Cowart v Bezio |
| 2009 NY Slip Op 08109 [67 AD3d 1152] |
| November 12, 2009 |
| Appellate Division, Third Department |
| In the Matter of Floyd Cowart, Petitioner, v Norman R. Bezio, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco 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 a prison disciplinary rule.
Petitioner, a prisoner, was given a misbehavior report citing various charges stemming froma series of letters that he wrote to the facility's Muslim coordinating chaplain, and which he alsodistributed to other inmates. Following a tier III disciplinary hearing, petitioner was found guiltyof demonstration and unauthorized organization. On administrative appeal, the charge ofunauthorized organization was dismissed. Petitioner thereafter commenced this CPLR article 78proceeding.
We confirm. Contrary to petitioner's contention, his rights were not violated by a gap in thehearing transcript that represented the omission of a fellow inmate's testimony, inasmuch as saidgap does not render the hearing so incomprehensible or incomplete as to preclude meaningfulreview (see Matter of Abraham v Stateof New York, 49 AD3d 998, 999 [2008]; Matter of McCloud v Selsky, 45 AD3d 1127, 1128 [2007]; Matter of Frazier v Artus, 40 AD3d1288, 1289 [2007]). Significantly, the only charge for which petitioner was ultimately foundguilty stemmed from the letters he authored and their distribution to other inmates, facts to whichpetitioner readily admitted during the hearing.[*2]
Petitioner also claims that his right to call a witness wasdenied because, after the Hearing Officer's attempt to contact the inmate witness at anotherfacility failed, no further attempt was made to solicit the inmate's testimony. Inasmuch aspetitioner stated affirmatively at the conclusion of such hearing that there was no other evidencehe wished to submit and that he did not have any objections to the manner in which the hearingwas held, we find no denial of his right to call witnesses (see Matter of Perretti v Fischer,58 AD3d 999, 1002 [2009], lv denied 12 NY3d 709 [2009]; Matter of Ross v Selsky, 49 AD3d1065, 1065 [2008]; Matter of Frazier v Artus, 40 AD3d at 1288). Furthermore,petitioner sought the testimony to establish that the witness had been in a fight before petitionerarrived at the prison, which was clearly irrelevant to the determination of his guilt (see Matter of Gimenez v Artus, 63AD3d 1461, 1462 [2009]; Matterof Scott v Fischer, 57 AD3d 1035, 1036 [2008], lv denied 12 NY3d 705[2009]).
Mercure, J.P., Peters, Lahtinen, Stein and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.