Opinion
430 CA 15-02042.
03-31-2017
In the Matter of Herbert FARRINGTON, Petitioner–Appellant, v. Anthony ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent–Respondent.
Wyoming County–Attica Legal Aid Bureau, Warsaw (Adam W. Koch of Counsel), for Petitioner–Appellant. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of Counsel), for Respondent–Respondent.
Wyoming County–Attica Legal Aid Bureau, Warsaw (Adam W. Koch of Counsel), for Petitioner–Appellant.
Eric T. Schneiderman, Attorney General, Albany (Frank Brady of Counsel), for Respondent–Respondent.
PRESENT: WHALEN, P.J., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM:
Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a tier III hearing, that he violated various inmate rules. We reject petitioner's contention that he was denied his right to effective employee assistance. Specifically, petitioner faults his employee assistant for failing to provide him with a "recreation go around" list that could have helped to identify some of the other inmates in the recreation yard at the time of the incident. The record establishes, however, that such lists are maintained for only two weeks, and petitioner did not request the list until long after it was destroyed. Thus, "[t]he employee assistant ‘cannot be faulted for ... failing to provide petitioner with documentary evidence that did not exist’ " (Matter of Green v. Sticht, 124 A.D.3d 1338, 1338, 1 N.Y.S.3d 670, lv. denied 26 N.Y.3d 906, 2015 WL 5553451 ; see Matter of Russell v. Selsky, 50 A.D.3d 1412, 1413, 857 N.Y.S.2d 289 ). Moreover, the record establishes that "petitioner received all the relevant and available documents to which he was entitled" (Matter of McGowan v. Goord, 282 A.D.2d 848, 849, 722 N.Y.S.2d 924 ). With respect to petitioner's contention that the employee assistant failed to investigate potential witnesses, we conclude that petitioner failed to provide the assistant with any "information to help identify specific witnesses" (Matter of Davila v. Selsky, 48 A.D.3d 846, 847, 850 N.Y.S.2d 705 ), and the assistant otherwise contacted the six witnesses who were identified by petitioner. Thus, because the documents sought by petitioner no longer existed, the assistant contacted all the witnesses actually identified by petitioner, and the record fails to establish any other deficiencies of the assistant, we conclude that the record does not establish that petitioner was denied his right to effective employee assistance (see generally Matter of Hazel v. Coombe, 239 A.D.2d 736, 737, 657 N.Y.S.2d 265 ).
Contrary to petitioner's further contention, his " ‘conditional right to call witnesses was not violated because the witnesses who were not called would have provided redundant testimony’ " (Matter of Hogan v. Fischer, 90 A.D.3d 1544, 1545, 935 N.Y.S.2d 769, lv. denied 19 N.Y.3d 801, 2012 WL 1504208 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.