Opinion
No. 61 TP 24-01163
02-07-2025
IN THE MATTER OF LORCEN BURROUGHS, PETITIONER,S v. UPERINTENDENT JOSEPH COREY, AUBURN CORRECTIONAL FACILITY, LT. VANTASSELL, CAPTAIN M. GILMORE, ACTING COMMISSIONER DANIEL F. MARTUSCELLO, AND DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENTS.
LORCEN BURROUGHS, PETITIONER PRO SE. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KATE H. NEPVEU OF COUNSEL), FOR RESPONDENTS.
LORCEN BURROUGHS, PETITIONER PRO SE.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KATE H. NEPVEU OF COUNSEL), FOR RESPONDENTS.
PRESENT: WHALEN, P.J., CURRAN, GREENWOOD, DELCONTE, AND KEANE, JJ.
Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Cayuga County [Thomas G. Leone, A.J.], entered July 16, 2024) to review a determination of respondent. The determination found after a tier II hearing that petitioner had violated various incarcerated individual rules.
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a tier II disciplinary hearing, that he violated incarcerated individual rules 106.10 (7 NYCRR 270.2 [B] [7] [i] [refusing direct order]) and 109.12 (7 NYCRR 270.2 [B] [10] [iii] [movement regulation violation]).
Initially, we note that the petition did not raise a substantial evidence issue, and thus Supreme Court erred in transferring the proceeding to this Court (see Matter of Cendales v Annucci, 196 A.D.3d 1069, 1069 [4th Dept 2021]; Matter of Nova v Annucci, 194 A.D.3d 1404, 1405 [4th Dept 2021]). In the interest of judicial economy, we nevertheless address petitioner's contentions (see Cendales, 196 A.D.3d at 1069; Nova, 194 A.D.3d at 1405).
We reject petitioner's contentions that the Hearing Officer improperly denied his request to call certain witnesses to testify at the hearing. "Although an [incarcerated individual] has a 'conditional right' to call witnesses..., an [incarcerated individual] is not entitled to call witnesses whose testimony is immaterial or redundant" (Matter of Ballard v Kickbush, 165 A.D.3d 1587, 1589 [4th Dept 2018], appeal dismissed 32 N.Y.3d 1182 [2019]; see 7 NYCRR 253.5 [a]). Here, the proposed testimony of the various witnesses was either irrelevant or redundant (see Cendales, 196 A.D.3d at 1069-1070; Matter of Jackson v Annucci, 122 A.D.3d 1288, 1288-1289 [4th Dept 2014]).
Petitioner's contention that the Hearing Officer improperly denied him the use of the video of the incident is not preserved for our review inasmuch as petitioner did not request any video of the incident at the hearing (see Matter of Estrada v Annucci, 199 A.D.3d 1145, 1146 [3d Dept 2021]; Matter of Burgess v Annucci, 178 A.D.3d 1419, 1420 [4th Dept 2019]). We have reviewed petitioner's remaining contention and conclude that it is without merit.