| Matter of Pante v Goord |
| 2010 NY Slip Op 04477 [73 AD3d 1394] |
| May 27, 2010 |
| Appellate Division, Third Department |
| In the Matter of Matthew Pante, Now Known as Mark Wolf,Appellant, v Glenn S. Goord, as Commissioner of Correctional Services,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Owen Demuth of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (McDonough, J.), entered April 25, 2007 inAlbany 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.
After he was accused of smoking in the shower room, petitioner struck a correction officer inthe face. Petitioner was subsequently charged in a misbehavior report with assault, creating adisturbance, refusing a direct order and smoking in an unauthorized area. Following a tier IIIdisciplinary hearing, petitioner was found not guilty of refusing a direct order and guilty of theremaining charges. This determination was affirmed on administrative appeal and petitionerthereafter commenced this CPLR article 78 proceeding. Supreme Court dismissed the petition,and petitioner now appeals.
We affirm. Contrary to petitioner's contention, he was not improperly denied the right to callboth a representative from the Inspector General's office and the facility superintendent aswitnesses as neither individual had personal knowledge of the incident in question (see Matter of Lozada v Cook, 67AD3d 1232, 1233 [2009], lv denied NY3d 706 [2010]). Further, the requestedtestimony concerning the investigation by the Inspector General's office into an alleged assaultof petitioner by correction officers at another facility, and the effect that incident had on [*2]the mental health of petitioner, would have been redundant as thewritten report of that investigation was read into the record and the Hearing Officer tookconfidential testimony concerning petitioner's mental health status from a representative from theOffice of Mental Health (see Matter ofScott v Fischer, 57 AD3d 1035, 1036 [2008], lv denied 12 NY3d 705 [2009].
We also reject petitioner's claim that his due process rights were violated because themisbehavior report was not endorsed by every correction officer having personal knowledge ofthe incident. Inasmuch as all the officers involved testified at the hearing, we discern noprejudice to petitioner (see Matter ofHernandez v Selsky, 50 AD3d 1340, 1340-1341 [2008]; Matter of Davis v Goord, 21 AD3d606, 609 [2005]). Further, we conclude that the misbehavior report provided petitioner withadequate notice of the charges to allow him to prepare a defense (see Matter of Hernandez v Fischer, 67AD3d 1225, 1226 [2009]). Finally, petitioner's claim that the Hearing Officer failed toconsider petitioner's mental health status is without merit, given the confidential testimonyconcerning this matter from a representative with the Office of Mental Health (see Matter of Triplett v Fischer, 54AD3d 1075, 1076 [2008]). Petitioner's remaining contentions have been examined andfound to be unavailing.
Peters, J.P., Rose, Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the judgment isaffirmed, without costs.