Opinion
2014-11-14
In the Matter of Terrence JACKSON, Petitioner, v. Anthony ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent.
Wyoming County–Attica Legal Aid Bureau, Warsaw (Adam W. Koch of Counsel), for Petitioner. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of Counsel), for Respondent.
Wyoming County–Attica Legal Aid Bureau, Warsaw (Adam W. Koch of Counsel), for Petitioner. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, and DeJOSEPH, JJ.
MEMORANDUM:
Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a tier III disciplinary hearing, that he violated various inmate rules. Contrary to petitioner's contention, the determination is supported by substantial evidence, including confidential testimony ( see Matter of Stewart v. Fischer, 109 A.D.3d 1122, 1123, 971 N.Y.S.2d 618, lv. denied22 N.Y.3d 858, 2013 WL 6598719; see generally People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997). We reject petitioner's further contention that the hearing officer was biased or that the determination flowed from the alleged bias ( see Matter of Colon v. Fischer, 83 A.D.3d 1500, 1501–1502, 921 N.Y.S.2d 441). Petitioner contends that he was denied his right to call certain witnesses and present certain documentary evidence in support of his defense of retaliation. We reject that contention. “The additional testimony [and documentary evidence] requested by petitioner would have been either redundant or immaterial” ( Matter of Sanchez v. Irvin, 186 A.D.2d 996, 996, 588 N.Y.S.2d 456, lv. denied81 N.Y.2d 702, 594 N.Y.S.2d 716, 610 N.E.2d 389; see Matter of Burr v. Fischer, 95 A.D.3d 1538, 1538–1539, 943 N.Y.S.2d 920, lv. denied19 N.Y.3d 811, 2012 WL 3930658). Finally, we reject petitioner's contention that this matter was improperly transferred to this Court because respondent failed to include a record of the administrative appeal with his answer. That record could not be located and, in view of respondent's assertion that he would not make a claim that petitioner failed to exhaust his administrative remedies, we conclude that Supreme Court properly determined that there was no “fatal defect” and transferred the proceeding to this Court ( see generally Matter of Duchmann v. Town of Hamburg, 93 A.D.3d 1289, 1289, 940 N.Y.S.2d 498).
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.