| Matter of Jones v Fischer |
| 2010 NY Slip Op 00322 [69 AD3d 1065] |
| January 14, 2010 |
| Appellate Division, Third Department |
| In the Matter of Lloyd Nelson Jones, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Proceeding pursuant CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with disobeying a direct order, assault,conduct disturbing the facility, failing to comply with frisk procedures, violent conduct andmaking threats. The charges stemmed from an incident where petitioner, as he was undergoing arandom frisk, struck a correction officer in the face and had to be subdued. Following a tier IIIdisciplinary hearing, petitioner was found guilty of all charges. This determination was affirmedon administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding.
We confirm. The misbehavior report, together with the unusual incident report, otherdocumentary evidence and the hearing testimony of the correction officers involved, providesubstantial evidence to support the determination (see Matter of Parkinson v Selsky, 49 AD3d 985, 985 [2008]; Matter of Griffin v Goord, 43 AD3d591, 591 [2007]). The contrary testimony of petitioner and his inmate witnesses presented acredibility issue for the Hearing Officer to resolve (see Matter of Hale v Selsky, 57 AD3d 1136, 1137 [2008],appeal dismissed 12 NY3d 776 [2009]). We reject petitioner's contention that theHearing Officer erred in taking the [*2]testimony of inmatewitnesses outside his presence. The record reveals that the telephone connection in the hearingroom of the segregated housing unit malfunctioned, causing the inmate witnesses' testimony tobe unintelligible. The problem continued after a lengthy adjournment and the Hearing Officerdecided to take testimony using telephone equipment in another part of the facility, outside thepresence of petitioner. Insofar as petitioner was allowed to submit questions and hear recordedtapes of the testimony and, after hearing the tapes, informed the Hearing Officer that all of hisquestions were asked, we see no prejudice to petitioner (see Matter of Cintron v Goord,280 AD2d 794, 794-795 [2001]; Matter of Joyce v Goord, 246 AD2d 926, 928 [1998];Matter of Bernacet v Coughlin, 145 AD2d 802, 804 [1988], lv denied 74 NY2d603 [1989]).
Regarding petitioner's claim that he was denied the right to present relevant documentaryevidence, we agree that the Hearing Officer's refusal to provide petitioner with the injuredcorrection officer's medical records, without an indication that their disclosure would jeopardizeinstitutional safety, was an error (seeMatter of McLean v Fischer, 63 AD3d 1468, 1469-1470 [2009]). However, in light ofthe overwhelming evidence of petitioner's guilt and the fact that these records were not relied onby the Hearing Officer in rendering his determination, we conclude that the error was harmless(see id.; Matter of Mack vGoord, 49 AD3d 1045, 1046 [2008], lv denied 10 NY3d 715 [2008]).Petitioner's remaining contentions, including that gaps in the hearing transcript preventmeaningful review, have been reviewed and found to be without merit.
Peters, J.P., Lahtinen, Kavanagh, Stein and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.