| Matter of Dennis v Bezio |
| 2011 NY Slip Op 01770 [82 AD3d 1398] |
| March 10, 2011 |
| Appellate Division, Third Department |
| In the Matter of Antwon Dennis, Petitioner, v Norman Bezio, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of the Commissioner of CorrectionalServices which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, filed applications to participate in the family reunion programand have conjugal visits with a woman he represented to be his legal spouse. He had his firstsuch visit with the woman in June 2009. He was scheduled to have his second visit in August2009, but the visit was revoked when it was discovered that the woman was carrying a cell phoneamong her belongings. Following this incident and during the course of reviewing petitioner'sfile, a correction counselor discovered a divorce decree establishing that petitioner had beenlegally divorced from the woman since 1996. As a result, he was charged in a misbehavior reportwith providing false information and violating guidelines for the family reunion program.Petitioner was found guilty of the charges following a tier III disciplinary hearing and thedetermination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with the testimony of the correction counselorwho authored it and the documentation in petitioner's file, provide substantial evidencesupporting the determination of guilt (see Matter of Gourdine v Venettozzi, 76 AD3d 736, 736[*2][2010]; Matter of Kasiem v New York State Dept. of Correctional Servs., 69AD3d 1268, 1269 [2010]). Although petitioner denied the charges and maintained that themisbehavior report was retaliatory in nature, this presented a credibility issue for the HearingOfficer to resolve (see Matter ofLamphear v Fischer, 76 AD3d 1166, 1166 [2010]; Matter of Porter v Goord, 47 AD3d 978, 979 [2008]). In addition,we find no merit to petitioner's claim that he was improperly denied requested documentationinasmuch as he was not entitled to those documents that did not exist or were irrelevant to thecharges (see Matter of Cornwall vFischer, 74 AD3d 1507, 1509 [2010]; Matter of Bornstorff v Bezio, 73 AD3d 1397, 1398 [2010]).Likewise, we are not persuaded that petitioner was improperly denied certain witnesses giventhat their testimony was not relevant to the main issue in the disciplinary proceeding, namely,petitioner's falsification of information on his family reunion applications (see Matter of Lozada v Cook, 67 AD3d1232, 1233 [2009], lv denied 14 NY3d 706 [2010]; Matter of Thompson v Votraw, 65AD3d 1403, 1404 [2009]). Finally, contrary to petitioner's claim that the misbehavior reportwas deficient, we find that it contained sufficient information to adequately apprise him of thecharges against him (see Matter ofGarraway v Fischer, 70 AD3d 1153, 1153 [2010]; Matter of Partee v Bezio, 67 AD3d 1224, 1224-1225 [2009], lvdenied 14 NY3d 702 [2010]). Petitioner's remaining arguments either have not beenpreserved for our review or are lacking in merit.
Mercure, J.P., Rose, Kavanagh, Stein and Garry, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.