| Matter of Barnes v Fischer |
| 2012 NY Slip Op 01709 [93 AD3d 967] |
| March 8, 2012 |
| Appellate Division, Third Department |
| In the Matter of Jessie J. Barnes, Petitioner, v Brian Fischer, asCommissioner of Corrections and Community Supervision,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Arnold of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Franklin County) to review two determinations of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
After correction officers searched petitioner's cell and allegedly found prohibited items, hecovered the window on the door to his cell and caused water to flood from his cell onto thegallery floor. Petitioner was then removed from his cell, whereupon he spit at several correctionofficers, hitting one in the face. As a result, petitioner was charged with various infractions inthree separate misbehavior reports. Following a tier III disciplinary hearing, he was found guiltyof creating a disturbance, committing an unhygienic act, flooding, refusing a direct order andobstructing visibility. That determination was affirmed upon administrative appeal.
Petitioner thereafter was charged in yet another misbehavior report with refusing a directorder and violating mess hall procedures after he was ordered to hand his food tray out of his celland he refused to do so. Following a separate tier III hearing, petitioner was found guilty of thosecharges and that determination was also affirmed upon administrative appeal. Petitioner thencommenced this CPLR article 78 proceeding to challenge the two determinations.[*2]
We confirm. We first note that petitioner has abandonedany challenge to the sufficiency of the evidence supporting the determinations due to his failureto address the issue in his appellate brief (see Matter of Raqiyb v Fischer, 82 AD3d 1432, 1433 n [2011]; Matter of Martinez v Fischer, 82 AD3d1380, 1380 n [2011]).
Turning to petitioner's procedural contentions, we are not persuaded that petitioner wasimproperly denied video footage from inside his cell inasmuch as there is no evidence that suchfootage ever existed (see Matter ofHayes v Fischer, 78 AD3d 1396, 1397 [2010]; Matter of Barclay v Zolkosky, 78 AD3d 1343, 1344 [2010]).Likewise, we find no merit to petitioner's contention that he was improperly denied the right toask his witnesses certain questions. The testimony he sought to elicit was irrelevant to thecharges against him (see Matter ofJackson v Prack, 84 AD3d 1660, 1660 [2011]; Matter of Smith v Fischer, 79 AD3d 1491, 1492 [2010], lvdenied 18 NY3d 802 [2011]). Furthermore, our review of the record reveals no hearingofficer bias; rather, the determinations were premised upon the evidence introduced during thehearings (see Matter of Abreu vFischer, 87 AD3d 1241, 1242 [2011]). Finally, the penalties assessed were not soshocking to one's sense of fairness as to be excessive (see Matter of Faublas v Rock, 85 AD3d 1519, 1520 [2011]).
Petitioner's remaining contentions have been considered and found to be either unpreservedor lacking in merit.
Mercure, A.P.J., Peters, Lahtinen, Kavanagh and Garry, JJ., concur. Adjudged that thedeterminations are confirmed, without costs, and petition dismissed.