| Matter of Hayes v Fischer |
| 2010 NY Slip Op 00754 [70 AD3d 1085] |
| February 4, 2010 |
| Appellate Division, Third Department |
| In the Matter of Sidney Hayes, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady 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 respondent which foundpetitioner guilty of violating a prison disciplinary rule.
As part of an investigation by correction officers into alleged involvement by petitioner ingambling, extortion and gang-related activity, a search was conducted of petitioner's cube. Thesearch resulted in the discovery of a six-inch sharpened metal rod taped to the underside ofpetitioner's locker. Petitioner was thereafter charged in a misbehavior report with possessing aweapon. Following a tier III disciplinary hearing, petitioner was found guilty and thedetermination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with the hearing testimony and theconfidential testimony considered by the Hearing Officer in camera, provide substantial evidencesupporting the determination of guilt (see Matter of Smith v Fischer, 64 AD3d 1061, 1061-1062 [2009],lv denied 13 NY3d 712 [2009]; Matter of Samuel v Fischer, 53 AD3d 960, 960 [2008]).Petitioner's claim that the weapon was planted in his cube created a credibility issue for theHearing Officer to resolve (see Matterof Muller v Fischer, 62 AD3d 1191, 1191 [2009]).
Next, we are unpersuaded by petitioner's contention that he was denied the right to have twoinmates testify at his hearing. Although petitioner argues in this proceeding that the inmates[*2]could have witnessed the weapon being planted, he did notinform the Hearing Officer that this was the claimed purpose of their testimony. Accordingly, hefailed to demonstrate at the hearing how the requested testimony would have been relevant to thecharge against him, and the refusal was not erroneous (see Matter of Hall v Goord, 30 AD3d 921, 922 [2006], lvdenied 7 NY3d 713 [2006]). We are also unconvinced by petitioner's contention that he wasimproperly denied certain correction officers as witnesses inasmuch as the requested witnessesdid not have personal knowledge of the facts giving rise to the charge (see Matter of Thompson v Votraw, 65AD3d 1403, 1404 [2009]; Matterof Lee v Goord, 36 AD3d 1176, 1177 [2007]).
Finally, we are unpersuaded that certain remarks made by the Hearing Officer in the courseof the hearing indicated a predetermination of guilt regarding the charge of possession of aweapon (see Matter of Morgan vGoord, 10 AD3d 792, 793 [2004]; Matter of McClean v Coombe, 242 AD2d846, 847 [1997]). Our review of the record reveals that the Hearing Officer investigatedpetitioner's claim that the weapon was planted, and the determination of guilt flowed from theevidence presented and not from any alleged bias or predetermination by the Hearing Officer (see Matter of Harris v Fletcher, 30AD3d 948, 948-949 [2006]; Matterof Canzater-Smith v Selsky, 28 AD3d 899, 900 [2006]).
Petitioner's remaining claims have been considered and found to be lacking in merit.
Cardona, P.J., Mercure, Spain, Lahtinen and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.