| Matter of Bermudez v Fischer |
| 2010 NY Slip Op 02464 [71 AD3d 1361] |
| March 25, 2010 |
| Appellate Division, Third Department |
| In the Matter of Isaias Bermudez, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marlene O. Tuczinski of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to (1) review a determination of respondent which foundpetitioner guilty of violating certain prison disciplinary rules, and (2) review threedeterminations of the Central Office Review Committee which denied petitioner's grievances.
After petitioner was involved in an altercation with correction officers while he was beingpat frisked, he was served with a misbehavior report charging him with refusing a direct order,refusing to comply with frisk procedure and violent conduct. Subsequent to a tier III disciplinaryhearing, petitioner was found guilty of all charges. Petitioner's administrative appeal wasunsuccessful, and he thereafter commenced this CPLR article 78 proceeding to challenge thatdetermination, as well as three determinations that denied grievances he filed.
Initially, the misbehavior report, together with the supporting documentation and testimonyof one of the correction officers involved in the incident, provide substantial evidence to supportthe determination of guilt (see Matter ofLozada v Cook, 67 AD3d 1232 [2009]; Matter of Pertillar v Fischer, 64 AD3d 1029, 1030 [2009]).Petitioner's claim that he was denied the right to call a witness is unavailing inasmuch as therequested correction officer did not witness the events that gave rise to the misbehavior report(see Matter of Joseph v Fischer, 67AD3d 1103, 1104 [2009]; Matterof Gimenez v Artus, 63 AD3d 1461, 1462 [2009]). Finally, [*2]our examination of the record reveals that the determination flowedfrom the evidence presented at the hearing and not, as petitioner contends, from any bias on thepart of the Hearing Officer (see Matterof Koehl v LaClair, 67 AD3d 1134 [2009]; Matter of Caldwell v Fischer, 67 AD3d 1176 [2009]).
Petitioner also contests three determinations that denied grievances he filed pertaining tolimited access to the law library, an assault upon him allegedly perpetrated by correctionofficers, and various claims pertaining to the computation of his sentence. We note thatour review is limited to whether the determinations were irrational, arbitrary and capricious oraffected by an error of law (see Matterof Rivera v Fischer, 67 AD3d 1140, 1141 [2009]; Matter of Wooley v New York State Dept. of Correctional Servs., 61AD3d 1189, 1190 [2009], lv granted 13 NY3d 705 [2009]). Initially, we find noreason to disturb the determination regarding petitioner's law library access, inasmuch as there isno evidence in the record that he was denied access, and an investigation determined nomalfeasance on the part of facility staff. The denial of petitioner's grievance regarding an allegedassault by correction officers arising out of the same incident for which he was issued themisbehavior report at issue herein is also rational, particularly in light of the ensuinginvestigation and the determination of petitioner's guilt after the tier III disciplinary hearing.
Turning to petitioner's arguments regarding the calculation of his sentences, we find initiallythat the denial of petitioner's grievance regarding his contention that he should be credited with888 days of jail-time credit to be rationally based. The record shows that 1,002 days of jail time,representing the period between December 7, 2000 and September 5, 2003, were credited to bothsentences that petitioner received in 2003. Further, the Department of Correctional Servicesproperly calculated his 2003 sentences as running consecutively to his 1995 sentence byoperation of law (see Penal Law §§ 70.06, 70.25 [2-a]; Matter of King v Fischer, 62 AD3d1221, 1222 [2009], lv denied 13 NY3d 703 [2009]).
Finally, we address petitioner's objection to the denial of his grievance insofar as it pertainsto postrelease supervision. It is now clear that where, as here, the sentencing court failed toimpose a period of postrelease supervision, the Department lacks jurisdiction to do so (see Matter of Garner v New York StateDept. of Correctional Servs., 10 NY3d 358, 362 [2008]; People ex rel. Turner v Sears, 63AD3d 1404, 1405 [2009]). However, we are unable to find any evidence in this record thatthe Department administratively imposed a period of postrelease supervision. Furthermore, indenying petitioner's grievance, the Department stated that it "was working with the variousentities to identify and resentence" those inmates requiring resentencing under Garner.Thus, even if the Department had imposed a period of postrelease supervision, petitioner is nolonger aggrieved as the Department appears to have deleted any postrelease supervisionprovision that was improperly imposed without jurisdiction until such time as petitioner isproperly resentenced by a court of appropriate jurisdiction (see Matter of Garner v New YorkState Dept. of Correctional Servs., 10 NY3d at 363 n 4; Matter of Pace v Fischer, 60 AD3d 1070 [2009]).
We have examined petitioner's remaining contentions and find them to be without merit.
Spain, J.P., Rose, Lahtinen, McCarthy and Garry, JJ., concur. Adjudged that thedeterminations are confirmed, without costs, and petition [*3]dismissed.