| Matter of Cornwall v Fischer |
| 2010 NY Slip Op 04892 [74 AD3d 1507] |
| June 10, 2010 |
| Appellate Division, Third Department |
| In the Matter of Shawn Cornwall, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
McCarthy, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order ofthe Supreme Court, entered in Albany County) to review a determination of respondent whichfound petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with possessing unauthorized organizationalmaterials and medication and engaging in an unauthorized exchange. Petitioner pleaded guilty topossessing unauthorized medication and, following a tier III disciplinary hearing, was foundguilty of possessing unauthorized materials and not guilty of engaging in an unauthorizedexchange. Thereafter, the charge of possessing unauthorized medication was dismissed and thepenalty previously imposed was modified. Petitioner's administrative appeal otherwise provedunsuccessful, prompting him to commence this proceeding pursuant to CPLR article 78 seekingto annul respondent's determination.
We confirm. Preliminarily, petitioner's claim that the rule prohibiting the possession ofunauthorized organizational materials is unconstitutionally vague was not raised at theadministrative hearing and, hence, is not preserved for our review (see generally Matter of McCollum vFischer, 61 AD3d 1194 [2009], lv denied 13 NY3d 703 [2009]). In any event,this [*2]Court previously has rejected such a claim (seeMatter of Tenace v Goord, 278 AD2d 549, 550 [2000], lv denied 96 NY2d 707[2001]).
As to the finding of guilt, the testimony adduced at the hearing was sufficient to establishthat the materials in question, which petitioner admitted were his and have been provided to thisCourt for our in camera review, contained gang references and qualified as unauthorizedmaterials (see e.g. Matter of Thorpe vFischer, 53 AD3d 1003, 1004 [2008]; Matter of Mercado v Selsky, 47 AD3d 1167, 1168 [2008], lvdenied 10 NY3d 713 [2008]; Matter of Taylor v Poole, 301 AD2d 768 [2003]).Contrary to petitioner's assertion, there was no need for the Hearing Officer to evaluate theconfidential informant's credibility, as the determination of guilt was based upon the testimonyof the sergeant who reviewed and assessed the challenged materials, along with the materialsthemselves (see Matter of Rolon vGoord, 30 AD3d 946, 948 [2006]). Although petitioner contends that the underlyingmisbehavior report was written in retaliation for grievances that he had filed, the Hearing Officerdid not need to obtain the actual grievances because she accepted petitioner's testimony that hehad filed several grievances against the author of the report; thus, a credibility determination waspresented for the Hearing Officer to resolve (see Matter of Brown v Fischer, 67 AD3d 1221 [2009]; Matter of McFadden v Venettozzi, 65AD3d 1401, 1402 [2009]). We also cannot say that the penalty imposed wasexcessive—particularly in view of petitioner's five prior violations of the same rule.
Petitioner's various procedural claims are equally unavailing. Whatever defects may haveexisted in petitioner's employee assistance were remedied at the administrative hearing and, inany event, petitioner has failed to demonstrate that he was prejudiced by any allegedinadequacies (see Matter of Martino vGoord, 38 AD3d 958, 959 [2007]; Matter of Abdullah v Goord, 36 AD3d 978, 979 [2007]). Petitionerneed not be provided with irrelevant materials or documents that do not exist (see Matter ofChavis v Goord, 58 AD3d 954, 955 [2009]; Matter of Lebron v McGinnis, 26 AD3d 658, 658-659 [2006],lv denied 7 NY3d 704 [2006]). Nor was petitioner denied the right to call witnesses onhis behalf. Although the Hearing Officer should have personally interviewed the inmate witnesswho initially agreed to testify and later refused without giving a reason (see Matter of Hill v Selsky, 19 AD3d64, 67 [2005]), petitioner is not aggrieved because that inmate's testimony would have beenlimited to the medication charge that was dismissed. After being informed that the remaininginmate witness had been transferred out of the facility, petitioner failed to renew his request forthe witness and, when asked whether he had any further witnesses, he responded in the negative(see Matter of Blackwell v Goord,5 AD3d 883, 885 [2004], lv denied 2 NY3d 708 [2004]). Petitioner advised theHearing Officer that he no longer needed to call the author of the misbehavior report (see Matter of Amaker v Selsky, 43AD3d 547, 548 [2007], lv denied 9 NY3d 814 [2007]), thereby waiving anyassertion that he was denied the right to call witnesses on his behalf (see Matter of Dixon v Brown, 62AD3d 1223, 1224 [2009], lv denied 13 NY3d 704 [2009]).
Finally, based upon our review of the record as a whole, "we find no merit to petitioner'sclaim that the Hearing Officer was biased or had predetermined his guilt, nor is there any basis toconclude that the determination flowed from such alleged bias" (Matter of Abdullah vGoord, 36 AD3d at 979). Petitioner's remaining contentions, to the extent not specificallyaddressed, have been examined and found to be lacking in merit.
Peters, J.P., Rose, Malone Jr. and Stein, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.