Opinion
2014-09-11
In the Matter of William J. CLARK, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
William J. Clark, Albion, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
William J. Clark, Albion, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, was charged in a misbehavior report with making threats, violent conduct and creating a disturbance. The charges arose from an incident in the prison law library on July 13, 2012 in which petitioner tried to confirm the name of the father of a correction officer assigned to the library and where his family lived, and petitioner threatened that if that officer did not approve all of his requests for special access to the library, when he got out, he would “burn your house down with you and all your family in it.” Following a tier III disciplinary hearing, petitioner was found guilty of the charges, and that determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report and the testimony of its author, at whom petitioner's conduct was directed, provided substantial evidence supporting the determination of guilt ( see Matter of Guillory v. Fischer, 111 A.D.3d 1005, 1005, 974 N.Y.S.2d 196 [2013]; Matter of Blocker v. Fischer, 107 A.D.3d 1285, 1286, 967 N.Y.S.2d 525 [2013] ). Petitioner's denial that the incident occurred as described and claims of retaliation created credibility issues for the Hearing Officer to resolve ( see Matter of Spikes v. Fischer, 100 A.D.3d 1231, 1231, 953 N.Y.S.2d 743 [2012], lv. denied20 N.Y.3d 862, 965 N.Y.S.2d 81, 987 N.E.2d 642 [2013] ). Contrary to his arguments, the Hearing Officer properly denied petitioner's request to call certain correction officers, inmates and his mother based upon the fact that they were not present for the incident and their testimony would have been irrelevant to the charges ( see Matter of Gaston v. Fischer, 109 A.D.3d 1063, 1064, 971 N.Y.S.2d 376 [2013] ). Petitioner was not deprived of the right to call certain other inmates as witnesses, including those present during the incident; all of them signed witness refusal forms indicting that they were not present and/or did not see or hear anything, which were read into the record ( see Matter of McFadden v. Venettozzi, 65 A.D.3d 1401, 1402, 885 N.Y.S.2d 377 [2009]; Matter of Martinez v. Selsky, 53 A.D.3d 989, 989, 862 N.Y.S.2d 632 [2008] ). Although not required ( see Matter of McGriff v. Fischer, 62 A.D.3d 1058, 1058, 877 N.Y.S.2d 917 [2009] ), the Hearing Officer interviewed the inmates identified as present, who confirmed their refusal to testify for the reasons stated. Finally, the record contains no support for petitioner's allegation of hearing officer bias ( see Matter of Guillory v. Fischer, 111 A.D.3d at 1005–1006, 974 N.Y.S.2d 196) or for his remaining claims.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed. LAHTINEN, J.P., GARRY, ROSE, DEVINE and CLARK, JJ., concur.