| Matter of Canty v Esgrow |
| 2011 NY Slip Op 03164 [83 AD3d 1322] |
| April 21, 2011 |
| Appellate Division, Third Department |
| In the Matter of Moshe Cinque Canty, Also Known as MosheCinque Owusu Sankofa Olugbala, Appellant, v James Esgrow, as Hearing Officer, et al.,Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), forrespondents.
Appeal from a judgment of the Supreme Court (Hayden, J.), entered August 31, 2010 inChemung County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review a determination of respondent Commissioner of Correctional Servicesfinding petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, was confined to the special housing unit (hereinafter SHU) whena correction officer gave him a direct order to stop yelling after the lights had been turned out.Petitioner requested a copy of that rule and, when the officer provided it, petitioner becameprofane and made threats toward the officer. As a result, petitioner was charged in a misbehaviorreport with refusing a direct order, creating a disturbance, making threats and harassment. Hewas found guilty of all charges following a tier III disciplinary hearing and that determinationwas affirmed on administrative appeal. Petitioner then commenced this CPLR article 78proceeding and Supreme Court dismissed the petition. Petitioner now appeals.
We affirm. Initially, we find that petitioner's right to call witnesses was not violated,inasmuch as the requested testimony would have been irrelevant (see Matter of Moore v Fischer, 76AD3d 737, 738 [2010]; Matter ofAbreu v Bezio, 71 AD3d 1341, 1342 [2010], appeal [*2]dismissed 15 NY3d 836 [2010]). Here, petitioner soughtinmate witnesses to establish that they had not received rule books upon admission to the SHU,however, the charges for which petitioner was found guilty resulted from disobeying a directorder from a correction officer, not a violation of the SHU rules. For that same reason, we rejectpetitioner's contention that his due process rights were violated by his failure to receive a copy ofthe SHU rules upon admission. Although the employee assistant did not provide him with certainrequested documents, we find that petitioner failed to demonstrate how this prejudiced hisdefense, as the documents he sought were the SHU rules and the directive stating that he was toreceive those rules upon admission which were, again, irrelevant to the proceedings (see Matter of Barca v Fischer, 80AD3d 1038, 1039 [2011]; Matter ofCornwall v Fischer, 73 AD3d 1367, 1368 [2010]).
Finally, we cannot say that the Hearing Officer erred in removing petitioner from the hearingafter repeated warnings not to pursue an irrelevant line of questioning and petitioner's continuingargumentative and obstructive behavior (see Matter of McDaniels v Bezio, 76 AD3d 1129, 1129 [2010]; Matter of Jackson v Fischer, 67 AD3d1207, 1208 [2009]). Petitioner's remaining arguments have been examined and found to bewithout merit.
Mercure, J.P., Rose, Kavanagh, McCarthy and Garry, JJ., concur. Ordered that the judgmentis affirmed, without costs.