| Matter of Burr v Fischer |
| 2012 NY Slip Op 03918 [95 AD3d 1538] |
| May 17, 2012 |
| Appellate Division, Third Department |
| 2—In the Matter of David A. Burr,Petitioner, v Brian Fischer, as Commissioner of Corrections and CommunitySupervision, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
Spain, 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.
The misbehavior report and testimony at the disciplinary hearing provide substantialevidence to support the determination finding petitioner guilty of harassment, refusing a directorder and making threats (see Matter ofHarrington v Prack, 91 AD3d 1244, 1245 [2012]; Matter of Sweet v Woods, 60 AD3d 1183 [2009]). Petitioner'scontention that there is no evidence regarding any threats is belied by the detailed misbehaviorreport, which sets forth the language that petitioner directed toward the correction officerinvolved in the incident.
Turning to petitioner's procedural challenges, the record reflects that the hearing was timelycommenced in view of petitioner's keeplock status at the time the misbehavior report was issued(see 7 NYCRR 251-5.1 [a]; Matter of Serrano v Goord, 28 AD3d 838 [2006]) and,subsequently, a valid extension to complete the hearing was obtained (see 7 NYCRR251-5.1 [b]; Matter of Thompson vVotraw, 65 AD3d 1403, 1404 [2009]). Furthermore, there is no merit [*2]to petitioner's assertion that he was improperly denied the right tocall certain witnesses, as the record establishes that their proffered testimony would be eitherredundant or irrelevant to the charges (see Matter of Vega v New York State Dept. of Correctional Servs., 92AD3d 991 [2012]). Moreover, at the conclusion of the hearing, petitioner explicitly waivedhis right to call any other witnesses.
Petitioner's remaining contentions, including that the Hearing Officer should have recusedhimself and his challenge to the punishment imposed, are either unpreserved for our review orwithout merit.
Peters, P.J., Lahtinen, Kavanagh and McCarthy, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.