Opinion
1049 TP 18–00478
09-28-2018
In the Matter of Michael YARBOROUGH, Petitioner, v. Anthony ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent.
WYOMING COUNTY–ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER. BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (JULIE M. SHERIDAN OF COUNSEL), FOR RESPONDENT.
WYOMING COUNTY–ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER.
BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (JULIE M. SHERIDAN OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the determination is unanimously confirmed without costs and the amended petition is dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a tier III disciplinary hearing, that he violated various inmate rules. Contrary to petitioner's contention, the determination is supported by substantial evidence (see Matter of Adams v. Annucci, 158 A.D.3d 1091, 1091, 70 N.Y.S.3d 671 [4th Dept. 2018] ; see generally People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997 [1985] ).
Petitioner further contends that the Hearing Officer improperly denied his request to call a certain inmate as a witness at the hearing because the Hearing Officer failed to ascertain the reason for the inmate's refusal to testify. We reject that contention. The record establishes that the inmate had initially agreed to testify as a witness for petitioner but ultimately refused to do so, despite the Hearing Officer's personal efforts to secure his testimony and to ascertain the reason for the refusal. "[W]hen the [H]earing [O]fficer conducts a personal interview but is unable to elicit a genuine reason from the refusing witness, the charged inmate's right to call witnesses will have been adequately protected" ( Matter of Hill v. Selsky, 19 A.D.3d 64, 67, 795 N.Y.S.2d 794 [3d Dept. 2005] ; see Matter of Blades v. Annucci, 153 A.D.3d 1502, 1503–1504, 60 N.Y.S.3d 724 [3d Dept. 2017] ). In any event, we note that the inmate's testimony would have been properly excluded by the Hearing Officer as redundant to the testimony of another inmate who testified at petitioner's hearing (see Matter of Inesti v. Rizzo, 155 A.D.3d 1581, 1582, 65 N.Y.S.3d 367 [4th Dept. 2017] ).
Finally, petitioner contends that the Hearing Officer erred in failing to assess the credibility and reliability of the informants who provided confidential testimony. Petitioner failed to raise that contention in his administrative appeal and thus failed to exhaust his administrative remedies with respect to it, and this Court lacks the discretionary authority to consider that contention (see Matter of Polanco v. Annucci , 136 A.D.3d 1325, 1325, 24 N.Y.S.3d 566 [4th Dept. 2016] ).