| Matter of Lopez v Fischer |
| 2010 NY Slip Op 00336 [69 AD3d 1076] |
| January 14, 2010 |
| Appellate Division, Third Department |
| In the Matter of Malik Lopez, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of respondent Commissioner ofCorrectional Services which found petitioner guilty of violating a prison disciplinary rule.
During a routine search of petitioner's cell, a correction officer discovered two flat pieces ofmetal sharpened to a point on one end secreted under the sink drain pipe. Petitioner was chargedin a misbehavior report with possessing a weapon. He was found guilty following a tier IIIdisciplinary hearing. The determination was affirmed on administrative appeal, promptingpetitioner to commence this CPLR article 78 proceeding.
We confirm. The misbehavior report, together with the corroborating testimony adduced atthe hearing, provide substantial evidence to support the determination of guilt (see Matter of Johnson v Rock, 64AD3d 1096, 1096 [2009], lv denied 13 NY3d 713 [2009]; Matter of Gimenez v Artus, 63 AD3d1461, 1462 [2009]). Petitioner's contention that the weapons were planted in his cell inretaliation for his participation on the inmate liaison committee and for past letters he had writtento prison officials complaining of harassment presented a credibility determination for theHearing Officer to resolve (see Matterof King v [*2]Fischer, 62 AD3d 1194, 1195 [2009]; Matter of Muller v Fischer, 62 AD3d1191, 1191 [2009]).
We reject petitioner's contention that he was denied the right to introduce documentaryevidence to support his retaliation defense. The Hearing Officer acknowledged petitioner'sprevious complaints of harassment in connection to this defense (see Matter of Edwards v Goord, 11AD3d 832, 833 [2004]), read certain letters written by petitioner into the record and fullyexplored the retaliation issue during petitioner's testimony. Accordingly, the admission of theactual letters would have been redundant (see Matter of Williams v Goord, 31 AD3d 1086, 1087 [2006]).Regarding petitioner's request to have photographs taken of the sink area of his cell and havethem admitted into evidence, because the testimony by both petitioner and the correction officerwho conducted the search was similar in regard to the characteristics of the drain pipe, the needfor actual photographs was also redundant.
Finally, regarding petitioner's contention that he was denied the right to call witnesses at thehearing, a review of the record reveals that petitioner's assistant identified eight potential inmatewitnesses. Petitioner then chose four of those inmates to testify and all four subsequently signedrefusal to testify forms. As petitioner did not request testimony from the remaining four inmatesnor did he make any objection in this regard, he cannot now be heard to complain (see Matter of Abraham v State of NewYork, 49 AD3d 998, 999 [2008]). Petitioner's remaining contentions, including hearingofficer bias, have been reviewed and found to be lacking in merit.
Mercure, J.P., Peters, Lahtinen, Malone Jr. and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.