| Matter of Davis v State of New York |
| 2010 NY Slip Op 06267 [75 AD3d 1022] |
| July 29, 2010 |
| Appellate Division, Third Department |
| In the Matter of Willie Davis, Petitioner, v State of New York etal., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Ann P. Zybert of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Sullivan County) to review a determination of respondent Commissioner ofCorrectional Services which found petitioner guilty of violating certain prison disciplinary rules.
Following a physical altercation with his cell mate, petitioner was served with twomisbehavior reports charging him with, as relevant here, assaulting an inmate, fighting,possessing a weapon and refusing a direct order. A tier III disciplinary hearing was held, afterwhich petitioner was found guilty of the enumerated charges. The determination was upheld onadministrative appeal, after which petitioner commenced this CPLR article 78proceeding.[FN*]
We confirm. Petitioner first contends that the Hearing Officer should have recused himselfbecause he was the supervisor of double bunks at the time of the incident and petitioner hadmade several requests for a transfer because he was experiencing problems with his cell [*2]mate. Regardless of whether petitioner's assertion is true, we find itirrelevant to the determination of guilt, particularly where petitioner admitted to initiating thefight with his cell mate (see generallyMatter of Pettus v New York State Dept. of Correctional Servs., 70 AD3d 1164 [2010];Matter of Partee v Bezio, 67 AD3d1224, 1225 [2009], lv denied 14 NY3d 702 [2010]). Furthermore, we find thatpetitioner was not improperly denied the right to call certain correction officers to testify to thefact that he had requested a transfer, as the officers had no direct knowledge of the incident inquestion and their testimony would have been redundant given that the Hearing Officeracknowledged that petitioner had made such a request (see Matter of Williams v Fischer, 69 AD3d 1278, 1278-1279[2010]; Matter of McLean vFischer, 63 AD3d 1468, 1469 [2009]).
We have examined petitioner's remaining contentions and find them to be either unpreservedor without merit.
Mercure, J.P., Rose, Kavanagh, Stein and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.
Footnote *: We note that this proceedingwas improperly transferred to this Court inasmuch as the petition failed to raise a question ofsubstantial evidence (see Matter ofWest v Bezio, 63 AD3d 1464, 1465 n [2009]). However, in the interest of judicialeconomy, we will retain jurisdiction and address the merits.