| Matter of Cody v Fischer |
| 2011 NY Slip Op 04324 [84 AD3d 1651] |
| May 26, 2011 |
| Appellate Division, Third Department |
| In the Matter of Roland Cody, Petitioner, v Brian Fischer,as Commissioner of Correctional Services, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
Lahtinen, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Albany County) to review a determination of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
Following a search of his cell, which was prompted by a report that petitioner had threatenedanother inmate, petitioner was charged in a misbehavior report with possessing a weapon andoutdated medication. At the conclusion of a tier III disciplinary hearing, petitioner was foundguilty of both charges. The determination was upheld upon administrative review, and petitionerthereafter commenced this proceeding challenging that determination.
The misbehavior report and supporting documentation, unusual incident report and thetestimony of involved officers provide substantial evidence to support the determination (see Matter of Nimmons v Fischer, 68AD3d 1311 [2009]; Matter of Vinesv Goord, 19 AD3d 951, 952 [2005]). Petitioner's testimony that he was set up bycorrection officers in retaliation for complaints against them created a credibility issue to beresolved by the Hearing Officer (see Matter of Nimmons v Fischer, 68 AD3d at 1311; Matter of Bailey v Walsh, 31 AD3d1088, 1089 [2006]).[*2]
Petitioner raises several procedural objections. A reviewof the misbehavior report confirms that it is sufficiently detailed to provide petitioner with noticeof the charges and the ability to prepare a defense (see Matter of Bailey v Walsh, 31AD3d at 1089; Matter of Vines v Goord, 19 AD3d at 952-953). With regard to theremoval of petitioner from the area during the search of his cell, we recognize that, generally, aninmate must be permitted to observe the search (see Matter of Vines v Goord, 19 AD3dat 952; Matter of Gonzalez v Wronski, 247 AD2d 767, 768 [1998]). However, the recordreflects that, in this case, a sergeant made the determination that petitioner posed a potentialthreat to the safety and security of the facility at that time (see Matter of Vines v Goord,19 AD3d at 952; Matter of McKethan v Selsky, 297 AD2d 840, 841 [2002]; Matter ofGonzalez v Wronski, 247 AD2d 767, 768 [1998]). Denial of petitioner's request fortestimony from additional inmate witnesses was not improper given that their testimony wouldhave been redundant (see Matter ofWarren v Fischer, 63 AD3d 1466, 1467 [2009]; Matter of Sowell v Goord, 295AD2d 835, 836 [2002]). Petitioner's remaining arguments, including his assertion that theHearing Officer should have recused himself, have been considered and found to be withoutmerit.
Spain, J.P., Kavanagh, McCarthy and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.