| Matter of Mayo v Fischer |
| 2011 NY Slip Op 01904 [82 AD3d 1421] |
| March 17, 2011 |
| Appellate Division, Third Department |
| In the Matter of Wilson Mayo, Appellant, v Brian Fischer, asCommissioner of Correctional Services, et al., Respondents. |
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Appeal from a judgment of the Supreme Court (Lynch, J.), entered April 23, 2010 in AlbanyCounty, 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 certain prison disciplinary rules.
Upon exiting the prison visiting room, petitioner, a prison inmate, was required to submit toa standard strip frisk. Following the frisk, the correction officer who performed it requestedpetitioner's identification and, as petitioner was handing it to him, he grabbed the officer's baton.The officer pulled back, after which petitioner struck him in the jaw with a clenched fist and was,thereafter, subdued. As a result, petitioner was charged in a misbehavior report with assaultingstaff and violent conduct and, following a tier III disciplinary hearing, was found guilty of bothcharges. Petitioner's administrative appeal was unavailing, and he commenced this CPLR article78 proceeding. Supreme Court dismissed the petition, and this appeal ensued.
We affirm. Petitioner's contention that he was improperly denied the right to call certainwitnesses is unpersuasive. With regard to the two correction officers stationed in the visitingroom, their testimony was properly denied in that they were not present and, therefore, had nodirect knowledge about the incident (seeMatter of Hernandez v Bezio, 73 AD3d 1406, 1407 [2010]; Matter of Williams v Fischer, 69 AD3d1278, 1278-1279 [2010]). As for the correction [*2]officerwho pat-frisked petitioner on the way into the visiting room, we cannot say, under thecircumstances here, that the Hearing Officer failed to make a diligent effort to secure the witness(see generally Matter of Perez vFischer, 62 AD3d 1104, 1105 [2009]). We also reject petitioner's contention that he wasprejudiced by inadequate employee assistance. Petitioner signed a document indicating that hewas satisfied with his assistance and the Hearing Officer remedied any deficiencies by providingpetitioner with requested documents or stipulating that such documents contained theinformation that petitioner alleged (seeMatter of Truman v Fischer, 75 AD3d 1019, 1020 [2010]). Finally, the record does notreveal any hearing officer bias but, rather, that the determination resulted from the evidencepresented at the hearing, including the testimony of the correction officer who was assaulted andanother who witnessed the incident (seeMatter of Reese v Bezio, 75 AD3d 1029, 1030 [2010]; Matter of Ortiz v Fischer, 75 AD3d1042, 1043 [2010]).
Petitioner's remaining contentions have been examined and found to be either unpreserved orwithout merit.
Peters, J.P., Rose, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed,without costs.