| Matter of Reid v Fischer |
| 2011 NY Slip Op 00313 [80 AD3d 1035] |
| January 20, 2011 |
| Appellate Division, Third Department |
| In the Matter of Rashad Reid, Appellant, v Brian Fischer,as Commissioner of Correctional Services, et al., Respondents. |
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Appeal from a judgment of the Supreme Court (Zwack, J.), entered May 24, 2010 in UlsterCounty, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, toreview a determination of respondent Commissioner of Correctional Services finding petitionerguilty of violating a prison disciplinary rule.
During a search of petitioner's prison cell, correction officers discovered, as relevant here, aphotograph album containing pictures of various inmates appearing to display gang hand signals.As a result, petitioner was issued a misbehavior report and, following a tier III disciplinaryhearing, was found guilty of possessing unauthorized organizational material. That determinationwas administratively affirmed and petitioner thereafter commenced this CPLR article 78proceeding. Supreme Court dismissed the petition, and this appeal ensued.
We affirm. Initially, we reject petitioner's claim that the determination should be annulledbecause he received inadequate employee assistance. The record demonstrates that, afterpetitioner first complained of inadequate assistance, the Hearing Officer adjourned the hearing toprovide petitioner with the necessary assistance and, when the hearing reconvened, petitionerindicated his satisfaction. Moreover, the Hearing Officer adjourned the hearing a second time togive petitioner the opportunity to examine the physical evidence before questioning a correctionofficer witness. As such, we find that any purported inadequacy on the part of the employeeassistant was cured by the Hearing Officer at the disciplinary hearing and [*2]petitioner has demonstrated no prejudice resulting from the allegedinadequate assistance (see Matter ofFludd v New York State Dept. of Correctional Servs., 62 AD3d 1149, 1152 [2009],lv denied 13 NY3d 705 [2009]; Matter of Sierra v Dubray, 58 AD3d 970, 971[2009]; Matter of Burgess v Selsky,50 AD3d 1347, 1348 [2008]). Likewise, petitioner was not improperly denied his right tocall a second correction counselor as a witness, inasmuch as that counselor had no training in therecognition of gang symbols and, therefore, his testimony would have been redundant to that ofthe correction counselor who did testify (see Matter of Hernandez v Bezio, 73 AD3d 1406, 1407 [2010]; Matter of Williams v Fischer, 69 AD3d1278, 1278-1279 [2010]). Finally, we find that the determination of guilt was a result of theevidence presented, rather than any alleged hearing officer bias, particularly where petitioner wasfound not guilty on three of the four charges in the misbehavior report (see Matter of Lamphear v Fischer, 76AD3d 1166 [2010]).
Cardona, P.J., Peters, Malone Jr., Stein and Garry, JJ., concur. Ordered that the judgment isaffirmed, without costs.