| Matter of Bunting v Fischer |
| 2011 NY Slip Op 05391 [85 AD3d 1473] |
| June 23, 2011 |
| Appellate Division, Third Department |
| In the Matter of Johnny Bunting, Petitioner, v BrianFischer, as Commissioner of Correctional Services, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Owen Demuth of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Chemung County) to review two determinations of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
Pursuant to an investigation, petitioner's mail was found to contain paperwork sent toSupreme Court, Bronx County, referencing a lien against the District Attorney and the Countyitself in the amount of roughly $11 billion. Consequently, petitioner was charged in amisbehavior report with unauthorized possession of Uniform Commercial Code materials andfiling an unauthorized lien. Petitioner was thereafter charged, as relevant here, with smugglingand violating correspondence procedures when he attempted to send those same documents to hissister with a request that she forward the documents on his behalf. Following separate tier IIIdisciplinary hearings, petitioner was found guilty of the enumerated charges and thosedeterminations were administratively affirmed. Petitioner then commenced this CPLR article 78proceeding to challenge both determinations.
We confirm. The detailed misbehavior reports, copies of the correspondence, the testimonyof investigators, including an attorney who identified the correspondence as redemptiondocuments, and petitioner's admissions provide substantial evidence to support bothdeterminations (see Matter of Montes vBezio, 79 AD3d 1567, 1568 [2010], lv granted 16 NY3d [*2]849 [2011]; Matter of Flemming v Fischer, 74 AD3d 1693, 1694 [2010]).Furthermore, confidential testimony established the necessary authorizations to open petitioner'soutgoing mail (see Matter of Montes v Bezio, 79 AD3d at 1568).
Turning to petitioner's procedural contentions, we find that the Hearing Officer did not err inremoving petitioner from the hearings inasmuch as he persisted in being disruptive andargumentative despite repeated warnings (see Matter of McDaniels v Bezio, 76 AD3d 1129, 1129 [2010]; Matter of Odom v Fischer, 65 AD3d1425, 1426 [2009]). We reject petitioner's contention that he was improperly denied the rightto call certain witnesses. The testimony of petitioner's sister was irrelevant as it related solely tothe charge of solicitation, which was ultimately dismissed (see Matter of Cornwall v Fischer, 74 AD3d 1507, 1509 [2010]; Matter of Polite v Goord, 49 AD3d944 [2008]). Similarly, the testimony of petitioner's requested employee witnesses wouldhave been redundant, as the Hearing Officer informed petitioner that authorization to open hismail had already been established through confidential testimony (see 7 NYCRR 253.5[a]; Matter of Antinuche v Goord,16 AD3d 743, 744 [2005]). Finally, a review of the record demonstrates that thedeterminations of guilt resulted from the evidence presented, rather than alleged hearing officerbias (see Matter of Piper v Bezio,81 AD3d 1049, 1050 [2011]).
We have examined petitioner's remaining contentions, including that the penalties imposedwere unduly harsh, and find them either unpreserved or without merit.
Spain, J.P., Rose, Kavanagh, Stein and Egan Jr., JJ., concur. Adjudged that thedeterminations are confirmed, without costs, and petition dismissed.