| Matter of Walker v Fischer |
| 2010 NY Slip Op 02041 [71 AD3d 1309] |
| March 18, 2010 |
| Appellate Division, Third Department |
| In the Matter of Tyrone Walker, Appellant, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Feldstein, J.), entered May 15, 2009 inClinton County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review a determination of respondent finding petitioner guilty of violating certainprison disciplinary rules.
While walking past petitioner's cell on August 17, 2008, a correction officer observedpetitioner holding a note indicating that he would give $20 in exchange for cigarettes andmatches. After reporting this to his supervisor, the officer passed by petitioner's cell thefollowing day and again observed him holding the same note. On his second round that day, theofficer stopped at petitioner's cell at which time petitioner gave him a $20 bill that had beenenclosed in plastic wrap and concealed inside the waistband of a pair of pants. As a result,petitioner was charged in a misbehavior report with smuggling, extortion and possessingunauthorized property. He was found guilty of these charges following a tier III disciplinaryhearing. The determination was upheld on administrative appeal with a modified penalty.Petitioner then commenced this CPLR article 78 proceeding challenging the determination and,following joinder of issue, Supreme Court dismissed the petition. This appeal ensued.
Initially, we note that petitioner confines his challenge to procedural matters. He asserts thathe was improperly denied the right to call the Superintendent of the correctional facility as awitness at the hearing to prove that the charge was made in retaliation for his prior conduct. As[*2]the Superintendent was not present at the time of the incidentand was not shown to have relevant personal knowledge, however, his testimony was properlyexcluded (see Matter of Moss vGoord, 36 AD3d 977, 978 [2007]; Matter of Flenon v Goord, 24 AD3d 912 [2005], lv denied6 NY3d 710 [2006]). Petitioner further contends that he was improperly denied certaindocumentary evidence consisting of, among other things, log book entries and a videotape ofAugust 17, 2008. However, given that the incident occurred the following day, suchdocumentation was also irrelevant to the charges (see Matter of McIver v Goord, 37 AD3d 943, 945 [2007]; Matter of Miller v Goord, 2 AD3d928, 930 [2003]). Contrary to petitioner's claim, there is nothing in the record to indicatethat the Hearing Officer was biased or that the determination of guilt flowed from any allegedbias (see Matter of Kirby vLeclaire, 47 AD3d 1174, 1175 [2008]; Matter of Harvey v Woods, 56 AD3d 829, 830 [2008]). We haveconsidered petitioner's remaining arguments, including his claim that he was denied adequateemployee assistance, and find them to be unavailing. Accordingly, Supreme Court properlydismissed the petition.
Cardona, P.J., Peters, Lahtinen, Stein and Garry, JJ., concur. Ordered that the judgment isaffirmed, without costs.