| Matter of Lane v Kirkpatrick |
| 2009 NY Slip Op 09109 [68 AD3d 1280] |
| December 10, 2009 |
| Appellate Division, Third Department |
| In the Matter of John Lane, Petitioner, v Robert Kirkpatrick, asSuperintendent of Wende Correctional Facility, 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 the Commissioner of CorrectionalServices which placed petitioner in involuntary protective custody.
While an inmate at Wende Correctional Facility in Erie County, petitioner was placed ininvoluntary protective custody following a hearing where it was determined that his safety wasin jeopardy. This determination was upheld on administrative appeal, prompting petitioner tocommence this CPLR article 78 proceeding.
We confirm. The involuntary protective custody recommendation, together with theconfidential testimony considered by the Hearing Officer in camera, provide substantial evidencesupporting the determination upholding the recommendation (see Matter of Dawes v Fischer, 53AD3d 902, 903 [2008]). Contrary to petitioner's contention, as the Hearing Officerpersonally interviewed the confidential informant, he had sufficient grounds upon which toindependently access the informant's credibility (see Matter of Nova v Selsky, 54 AD3d 453, 454 [2008]).
We reject petitioner's contention that he was improperly denied the right to call certainwitnesses at the hearing, inasmuch as their testimony would have been redundant to othertestimony or irrelevant to the recommendation of protective custody (see Matter of Warren v [*2]Fischer, 63 AD3d 1466, 1467 [2009]). Furthermore,petitioner did not request that the author of the recommendation report testify until after theHearing Officer had rendered his determination, making the request untimely (see Matter ofCarota v Goord, 285 AD2d 676, 677 [2001], lv denied 97 NY2d 603 [2001]). Alsodevoid of merit is petitioner's contention that he was denied a fair hearing due to the fact thatcertain portions of the tape-recorded testimony of one of his inmate witnesses, given outside ofpetitioner's presence, were inaudible when played back for him at his hearing. The hearingrecord contains a transcript of the witness's testimony, which reflects that the witness was askedand answered the questions that petitioner had submitted (see Matter of Almonte vGoord, 261 AD2d 684, 685 [1999], lv denied 93 NY2d 818 [1999]). Moreover,following the playback of the testimony, the Hearing Officer accurately repeated to petitionerboth the questions asked and the witness's answers. Accordingly, we discern no resultingprejudice to petitioner (see Matter of Thomas v Coughlin, 145 AD2d 695, 696 [1988]).Petitioner's remaining contentions have been reviewed and found to be without merit.
Cardona, P.J., Spain, Rose, Kane and Stein, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.