Opinion
03-18-2016
In the Matter of Mike HAWLEY, 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 (Marcus J. Mastracco 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 (Marcus J. Mastracco of Counsel), for Respondent–Respondent.
MEMORANDUM:
Petitioner commenced this CPLR article 78 proceeding seeking to annul that part of the determination, following a tier III disciplinary hearing, finding that he violated inmate rule 113.10 (7 NYCRR 270.2 [B][14][i] [weapon possession] ). Supreme Court dismissed the petition, and we affirm. Although a directive of the Department of Corrections and Community Supervision provides that an inmate removed from his or her cell for a search has the right to observe the search absent a determination that he or she presents a safety or security risk (see Matter of Johnson v. Fischer, 109 A.D.3d 1070, 1071, 971 N.Y.S.2d 590 ), that directive is inapplicable here because petitioner was being examined in the prison hospital when his cell was searched, and he was therefore not "removed from his cell for the purpose of conducting the search" (Matter of Williams v. Goord, 270 A.D.2d 744, 745, 705 N.Y.S.2d 129 ; see Matter of Horton v. Annucci, 133 A.D.3d 1002, 1003, 20 N.Y.S.3d 207 ; Matter of Nieves v. Goord, 262 A.D.2d 1042, 1042, 693 N.Y.S.2d 361 ). Contrary to petitioner's contention, the Hearing Officer properly denied his request to call a lieutenant as a witness because the lieutenant's testimony " ‘would have been either redundant or immaterial’ " (Matter of Jackson v. Annucci, 122 A.D.3d 1288, 1288, 994 N.Y.S.2d 755 ; see 7 NYCRR 254.5 [a]; Matter of Mullady v. Bezio, 87 A.D.3d 765, 766, 928 N.Y.S.2d 149 ). Petitioner's further contention that it was improper for the hearing officer to address two misbehavior reports at one hearing is not preserved for our review because he did not raise it at the hearing (see Matter of Freeman v. Selsky, 270 A.D.2d 547, 547, 705 N.Y.S.2d 87 ; see generally Matter of Allah v. Fischer, 118 A.D.3d 1507, 1507, 987 N.Y.S.2d 920 ). In any event, "no law or regulation prohibits the review of two misbehavior reports in one disciplinary hearing" (Freeman, 270 A.D.2d at 547, 705 N.Y.S.2d 87 ; see Matter of Baker v. Fischer, 96 A.D.3d 1334, 1334, 946 N.Y.S.2d 909 ), and petitioner's claim of prejudice is not supported by the record (see generally Matter of Bramble v. Mead, 242 A.D.2d 858, 859, 662 N.Y.S.2d 960, lv. denied 91 N.Y.2d 803, 668 N.Y.S.2d 558, 691 N.E.2d 630 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
WHALEN, P.J., SMITH, CARNI, NEMOYER, and CURRAN, JJ., concur.