| Matter of Procopio v Fischer |
| 2012 NY Slip Op 08193 [100 AD3d 1292] |
| November 29, 2012 |
| Appellate Division, Third Department |
| In the Matter of Daniel Procopio, Petitioner, v Brian Fischer, asCommissioner of Corrections and Community Supervision,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Julie M. Sheridan of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review (1) four determinations which found petitioner guiltyof violating certain prison disciplinary rules and (2) a determination of respondent whichwithheld 19 months of petitioner's good time allowance.
Although petitioner challenged numerous prison disciplinary determinations in this CPLRarticle 78 proceeding, he limits his arguments here to one finding him guilty of violating theprison disciplinary rule prohibiting inmates from possessing a weapon. Petitioner asserts that hereceived inadequate employee assistance therein but, assuming any inadequacies existed, theywere remedied by the Hearing Officer and did not lead to prejudice (see Matter of Barnes v Bezio, 86 AD3d884, 885 [2011]). Further, while two requested inmate witnesses declined to testify, theyspecified in writing that they had no knowledge regarding the charge, and petitioner's right to callwitnesses was accordingly protected (see Matter of Tulloch v Fischer, 90 AD3d 1370, 1371 [2011]; Matter of Reynoso v Fischer, 67 AD3d1166 [2009], appeal dismissed 14 NY3d 767 [2010]). To the extent that the issue isproperly before us, we further reject petitioner's claims that the Hearing Officer was biased orthat the determination flowed therefrom (see Matter of Colon v Fischer, 98 AD3d 1176, 1177 [2012];Matter of Barnes v Bezio, 86 AD3d at 885).[*2]
Petitioner also challenges a determination withholding aportion of his good time credit, which is a discretionary determination that will be upheld if madein accordance with law and based upon a review of an inmate's entire record (seeCorrection Law § 803 [1] [a]; Matter of Reed v Fischer, 54 AD3d 1088, 1088 [2008]).Respondent here rationally concluded that a withholding of good time was appropriate, inasmuchas the established weapons possession charge demonstrated a regression in petitioner's behaviorthat required further aggression replacement therapy (see Correction Law § 803 [1][a]; Matter of Torres v Durbray, 64AD3d 1027, 1027-1028 [2009], lv denied 13 NY3d 709 [2009]). Petitioner againattempts to show that he was denied effective employee assistance, but the record is devoid ofproof that any claimed inadequacy prejudiced him given his disciplinary record (see Matter of Brown v Napoli, 62AD3d 1106, 1107 [2009], lv denied 13 NY3d 706 [2009]).
Peters, P.J., Mercure, Lahtinen, Kavanagh and Garry, JJ., concur. Adjudged that thedeterminations are confirmed, without costs, and petition dismissed.