Opinion
2012-02-2
In the Matter of Jesse J. BARNES, Petitioner, v. Albert PRACK, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Jesse J. Barnes, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Jesse J. Barnes, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: PETERS, J.P., ROSE, LAHTINEN, KAVANAGH and GARRY, JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review two determinations which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, became verbally abusive and profane towards a facility nurse while she was dispensing medication at his cell. Ignoring several direct orders to desist, petitioner continued his abuse and threatened to kill the nurse and her family. Petitioner was thereafter charged in a misbehavior report with various infractions and, following a tier III disciplinary hearing, was found guilty of harassment, making threats and creating a disturbance. The determination was affirmed upon administrative appeal.
In a separate incident, petitioner was found guilty, following a tier II disciplinary hearing, of interference and refusing a direct order after he ignored several orders to turn in his razor before finally complying. After that determination was also affirmed administratively, petitioner commenced this CPLR article 78 proceeding to challenge both determinations.
We confirm. Initially, we note that petitioner has failed to advance any arguments in his brief with regard to the second determination finding him guilty of interference and refusing a direct order and, accordingly, his challenge to said determination is deemed abandoned ( see Matter of Raqiyb v. Fischer, 82 A.D.3d 1432, 1433 n., 919 N.Y.S.2d 543 [2011]; Matter of Lamage v. Bezio, 74 A.D.3d 1676, 1676, 906 N.Y.S.2d 110 [2010] ).
To the extent that petitioner raises a substantial evidence argument with respect to the first determination, the detailed misbehavior report and videotape of the incident provide the necessary quantum of proof, particularly where petitioner declined to request the testimony of the nurse involved when given the opportunity ( see Matter of Barnes v. Prack, 87 A.D.3d 1251, 1252, 930 N.Y.S.2d 308 [2011]; Matter of Kalwasinski v. Fischer, 87 A.D.3d 1207, 1207–1208, 929 N.Y.S.2d 777 [2011] ). Petitioner was not impermissibly denied his right to call an inmate witness inasmuch as the Hearing Officer accepted as true the proposed testimony, which rendered it redundant ( see Matter of Darshan v. Bango, 83 A.D.3d 1302, 920 N.Y.S.2d 739 [2011]; Matter of Perretti v. Fischer, 58 A.D.3d 999, 1001, 871 N.Y.S.2d 746 [2009], lv. denied 12 N.Y.3d 709, 2009 WL 1259064 [2009] ). The record refutes petitioner's claim of hearing officer bias and, rather, demonstrates that the finding of guilt was premised on the evidence presented ( see Matter of Abreu v. Fischer, 87 A.D.3d 1241, 1242, 930 N.Y.S.2d 301 [2011] ). Nor do we find that, in light of all the circumstances, the severity of the penalty assessed is so excessive as to shock our sense of fairness ( see Matter of Faublas v. Rock, 85 A.D.3d 1519, 1520, 925 N.Y.S.2d 923 [2011] ). Petitioner's remaining contention that he was improperly excluded from the hearing before the rendering of the disposition has been examined and found to be without merit.
ADJUDGED that the determinations are confirmed, without costs, and petition dismissed.