| Matter of White v Fischer |
| 2011 NY Slip Op 06624 [87 AD3d 1249] |
| September 29, 2011 |
| Appellate Division, Third Department |
| In the Matter of John White, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco 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 respondent which found petitionerguilty of violating certain prison disciplinary rules.
Petitioner was being escorted to recreation with other inmates when he was ordered to submitto a pat frisk. After petitioner refused to place his hands in the proper position, a correctionofficer placed his hand in the middle of petitioner's back, at which point petitioner turned andstruck the officer in the face with a closed fist. As a result, petitioner was served with amisbehavior report charging him with assaulting staff, violent conduct, refusing a direct orderand violating frisk procedures. Following a tier III disciplinary hearing, petitioner was foundguilty of all charges. That determination was affirmed on administrative appeal and petitionercommenced this CPLR article 78 proceeding.
We confirm. To the extent that petitioner argues that the determination was not supported bysubstantial evidence, the misbehavior report, hearing testimony and supporting documentationprovide the requisite quantum of proof to support the determination of guilt (see Matter of Cody v Fischer, 84 AD3d1651, 1651 [2011]; Matter ofWilliams v Fischer, 84 AD3d 1661, 1662 [2011], lv denied 17 NY3d 711[2011]). Petitioner's claim that the report was issued in retaliation for grievances he had filedraised a credibility question for the Hearing Officer to resolve (see Matter of Phipps v Fischer, 82AD3d 1396, 1397 [2011]; Matter of[*2]Lamphear v Fischer, 76 AD3d 1166 [2010]).Additionally, petitioner's claim that his right to attend the hearing was violated is unavailinginasmuch as he waived his right to participate (see 9 NYCRR 7006.8 [c]; see generally Matter of Williams vBezio, 79 AD3d 1556, 1557 [2010], lv denied 16 NY3d 710 [2011]).
Turning to petitioner's procedural challenges, we reject petitioner's contention that hisemployee assistance was inadequate, inasmuch as the record demonstrates that he refused suchassistance when offered (see e.g. Matter of Barnwell v Goord, 268 AD2d 725, 726[2000], lv denied 95 NY2d 751 [2000]). In any event, the Hearing Officer providedpetitioner with the requested documents that were relevant and adjourned the hearing to givepetitioner time to review them (seeMatter of Hernandez v Fischer, 79 AD3d 1544, 1545-1546 [2010], lv denied 16NY3d 710 [2011]). Finally, petitioner's right to call witnesses was not violated, inasmuch as thetestimony of the proposed witnesses who were denied would have been irrelevant (see Matter of Canty v Esgrow, 83AD3d 1322, 1322 [2011], lv denied 17 NY3d 705 [2011]; Matter of Harvey v Bradt, 81 AD3d1003, 1004 [2011]).
We have examined petitioner's remaining claims and find them to be either unpreserved orwithout merit.
Mercure, J.P., Peters, Spain, Kavanagh and Stein, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.