Opinion
2012-02-9
In the Matter of Moshe Cinque CANTY, Also Known as Moshe Cinque Owusu Sankofa Olugbala, Appellant, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Moshe Cinque Canty, Malone, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Moshe Cinque Canty, Malone, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: PETERS, J.P., SPAIN, MALONE JR., McCARTHY and GARRY, JJ.
Appeal from a judgment of the Supreme Court (Hayden, J.), entered March 15, 2011 in Chemung County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition.
During a search of petitioner's cell, correction officials found a document written by petitioner containing gang-related references that was hidden inside a Bible. As a result, he was charged in a misbehavior report with possessing gang-related materials. He was found guilty of the charge following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. Petitioner then commenced this CPLR article 78 proceeding, raising only procedural claims. Following service of respondent's answer, Supreme Court dismissed the petition and this appeal ensued.
We affirm. Initially, we find no merit to petitioner's claim that he was improperly removed from the hearing inasmuch as he became disruptive and continued to raise issues previously addressed by the Hearing Officer despite the Hearing Officer's numerous warnings that he would be removed from the hearing if he continued to engage in such conduct ( see Matter of Bunting v. Fischer, 85 A.D.3d 1473, 1474, 926 N.Y.S.2d 206 [2011], lv. denied 17 N.Y.3d 712, 2011 WL 4916599 [2011]; Matter of Jackson v. Fischer, 59 A.D.3d 820, 820–821, 873 N.Y.S.2d 765 [2009] ). Significantly, petitioner was not removed from the hearing until after all of the evidence had been presented. Likewise, we find no error in the Hearing Officer's denial of an inmate witness who was not present on the gallery at the time petitioner's cell was searched. This individual did not have personal knowledge of the incident and his testimony was, therefore, irrelevant to petitioner's defense that the document containing gang-related references was planted in his cell ( see Matter of McLean v. Fischer, 63 A.D.3d 1468, 1469, 884 N.Y.S.2d 265 [2009]; Matter of Kalwasinski v. Goord, 31 A.D.3d 1081, 1082, 819 N.Y.S.2d 200 [2006] ). Additionally, another inmate witness had already testified regarding which staff members were present in petitioner's cell for the search, rendering the further testimony redundant ( see Matter of Scott v. Fischer, 57 A.D.3d 1035, 1036, 868 N.Y.S.2d 816 [2008], lv. denied 12 N.Y.3d 705, 879 N.Y.S.2d 51, 906 N.E.2d 1085 [2009] ). Accordingly, Supreme Court properly dismissed the petition.
ORDERED that the judgment is affirmed, without costs.