| Matter of Tafari v Fischer |
| 2010 NY Slip Op 08418 [78 AD3d 1405] |
| November 18, 2010 |
| Appellate Division, Third Department |
| In the Matter of Injah Tafari, Appellant, v Brian Fischer, as Commissionerof Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Muller, J.), entered March 23, 2010 in ClintonCounty, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, toreview three determinations of respondent finding petitioner guilty of violating certain prison disciplinaryrules.
As the result of a series of letters written to a female prison employee and letters to family membersseeking to discover that employee's home address, petitioner, a prison inmate, was served with threemisbehavior reports. A tier III disciplinary hearing was held for each report. As a result, petitioner wasfound guilty of, as relevant here, stalking, harassment and refusing a direct order, and thosedeterminations were upheld on administrative review. Petitioner thereafter commenced a CPLR article78 proceeding to challenge the three determinations. Supreme Court dismissed petitioner's applicationand he now appeals.
We affirm. Petitioner's principal contention on this appeal is that he was denied witnesses during histhree disciplinary hearings. First, addressing the December 2, 2008 hearing, we reject petitioner'scontention that the Hearing Officer failed to make the proper effort to determine why certain inmatewitnesses refused to testify. Where inmate Hart never agreed to testify in the first instance, and therecord demonstrates that he refused because he did not want to be involved, we cannot say thatpetitioner was deprived of his right to call that witness (see [*2]Matter of McFadden v Venettozzi,65 AD3d 1401, 1402 [2009]; Matter ofHill v Selsky, 19 AD3d 64, 66-67 [2005]). Similarly, where inmate Rosario originally agreedto testify, the Hearing Officer's personal interview of him, despite the inmate's refusal to provide areason for not testifying, adequately protected petitioner's right (see Matter of West v Bezio, 63 AD3d 1464, 1465 [2009]; Matterof Hill v Selsky, 19 AD3d at 67). With regard to petitioner's request to call as witnesses membersof his family to whom he had written in an attempt to acquire the employee's home address, we find thatthey were properly denied as having no relevant testimony inasmuch as they never received petitioner'sletters (see Matter of Abreu v Bezio, 71AD3d 1341, 1341-1342 [2010], appeal dismissed 15 NY3d 836 [2010]; Matter of Pettus v New York State Dept. ofCorrectional Servs., 70 AD3d 1164, 1164 [2010]).
Turning to the December 17, 2008 hearing, we likewise find that the Hearing Officer properlydenied petitioner's requested inmate witnesses as irrelevant. While petitioner sought their testimony toestablish that the employee had told him that it was permissible to send her a letter, the charges againstpetitioner were based upon the content of the letter, not the fact that he had sent it (see Matter ofAbreu v Bezio, 71 AD3d at 1341-1342; Matter of Pettus v New York State Dept. ofCorrectional Servs., 70 AD3d at 1164). Likewise, petitioner's requested inmate witnesses for theDecember 30, 2008 hearing were properly denied as irrelevant where, again, he sought them for thesame reason but the charges against him arose from the fact that he sent the employee another letterafter he had been given a direct order to refrain from communicating with her.
Petitioner's remaining arguments have been considered and are either unpreserved or without merit.
Mercure, J.P., Spain, Malone Jr., Stein and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed, without costs.